Filed 5/26/15 Robles v. McErlain CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


JULIE R. ROBLES,
         Plaintiff and Respondent,
                                                                     A139333, A139532
v.
PATRICK J. McERLAIN,                                                 (San Mateo County
                                                                     Super. Ct. No. CIV 497415)
         Defendant and Appellant.


         Defendant and appellant Patrick J. McErlain appeals from a trial court order
renewing a civil harassment restraining order that limits him from engaging in various
acts vis-à-vis his neighbor, plaintiff and respondent Julie R. Robles. McErlain contends
reversal is required because the trial court applied an incorrect burden of proof and
committed prejudicial evidentiary errors. He also challenges the trial court’s order
granting attorney fees to Robles. We affirm the judgment and reverse, in part, the order
granting attorney fees.
                      I. FACTUAL AND PROCEDURAL BACKGROUND
         McErlain and Robles are both residents of a condominium development in
Burlingame, known as Park Plaza Towers. McErlain lives in one unit (# 305) and rents
out another (# 104). Robles lives near McErlain’s rental unit.




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A.      The Original Civil Harassment Restraining Order
        The original civil harassment restraining order, which was issued pursuant to Code
of Civil Procedure1 section 527.6, was in effect for a two year period starting in May
2011. Neither the original petition nor any evidence from the original proceeding has
been included in the record. The order reflects that the matter was decided upon written
stipulation of the parties. Pursuant to the parties’ stipulation, McErlain was ordered not
to “[h]arass, attack, . . . threaten, . . . follow, stalk, . . . keep under surveillance, or block
[the] movements” of Robles. He was further ordered not to “directly or indirectly”
contact Robles or “telephone, send messages, mail, or e-mail” to her. McErlain was also
ordered to stay at least 10 feet away from Robles, her home, and her vehicle.
Additionally, McErlain was ordered not to take “pictures” of Robles during the time the
restraining order was in effect. McErlain was also prohibited from taking “pictures of the
postal worker who delivers the mail” to Park Plaza Towers. McErlain was allowed to
attend homeowners’ association meetings and was required to stay at least three feet
away from Robles at such meetings. Robles was prohibited from “taking pictures” of
McErlain and from contacting him during the time the restraining order was in effect.
B.      The Petition to Review the Civil Harassment Restraining Order
        The following facts were shown by the declarations and briefs in support of, and
in opposition to, Robles’s renewal petition.
        Shortly after moving into Park Plaza Towers, McErlain was hired as the temporary
resident manager and was invited to apply for the permanent position. In the course of
filling the position, the homeowners’ association learned that McErlain had a felony
record. When McErlain failed to provide the requisite documentation and information,
another individual was hired for the position. Both the new resident manager and a
successor quit due to the harassment by McErlain. Tracy Fallon was then hired as the
resident manager. Robles, together with Fallon and several other residents had ongoing
problems with McErlain.


1
    All further undesignated statutory references are to the Code of Civil Procedure.

                                                 2
          Robles’s initial petition for a civil harassment restraining order was coordinated
with seven other civil harassment cases against McErlain. A settlement was eventually
reached and at least 10 civil harassment restraining orders were issued against McErlain.
Robles and two other residents, sought to renew their respective restraining orders. Of
the remaining restraining orders, two residents have orders that do not expire until
September 2015; five other residents have not undertaken to renew their respective
orders.
          In her petition to renew the civil harassment restraining order, Robles avers that
McErlain “continues to harass, vex, annoy, and scare” her, as well as other residents of
Park Plaza Towers. At the time of Robles’s declaration, there were 13 residents and one
caregiver at Park Plaza Towers with restraining orders against McErlain. Since February
2011, the San Mateo County District Attorney’s Office has opened five separate cases
against McErlain regarding multiple violations of several restraining orders; the matters
have now been consolidated into one case. Additionally, in July 2012, the homeowners’
association filed a civil suit against McErlain and his landlord/mother, Nancy McErlain.
          Robles claimed that McErlain and his mother have recently benefitted from a
substantial inheritance, which they have used to abuse the court system to further harass
Robles. McErlain subpoenaed Robles under her own restraining order and then filed an
action against her in July 2012 for housing discrimination. Robles states the following:
“Now, in addition to making me worry everyday whether he will jump out behind a car in
the garage in an attempt to scare me to death, or vandali[ze] my car, or storage locker, his
harassment has now grown to include financial and legal harassment.”
          McErlain claimed that Robles was the one harassing him and discriminating
against him for his recent bipolar disorder diagnosis. According to McErlain and his
physicians, his behavior has changed since being medicated. Robles, however,
maintained that McErlain’s behavior had “not really changed” and, in fact, in the two
years following the issuance of the restraining order, McErlain’s behavior actually
became worse. The following incidents were alleged to have occurred since the original
restraining order was issued in May 2011:


                                                3
       On July 10, 2011, McErlain “accosted” Robles in the underground parking garage
at Park Plaza Towers. McErlain “flipped her off and made no effort to leave the
vicinity.” Robles called the police and waited outside for them to arrive. As Robles
talked to the responding officer, McErlain drove out of the garage and “flipped off” both
the officer and Robles.
       On November 25, 2011, McErlain was observed taking pictures of Robles with a
video camera.
       On February 25, 2012, McErlain used a neighbor to contact Robles. The neighbor
knocked on Robles’s door and when Robles opened the door she saw McErlain in the
hallway about five feet from her front door. Robles saw McErlain gesture toward the
neighbor and heard McErlain tell the neighbor, “ ‘ Here, give this to Julie.’ ” It was a
photograph of McErlain. Robles asked the neighbor inside and closed the door, telling
the neighbor that McErlain was listening to them. Immediately, McErlain was heard
outside the door, saying, “ ‘I am not[.]’ ” After the neighbor left Robles’s unit, McErlain
remained in the hallway, just a few feet from Robles’s front door, “glaring at her in a
hostile and threatening manner.” (Fn. omitted.)
       On February 28, 2012, McErlain posted a paper containing “derogatory
statements” about Robles on the front door of his rental unit, which is “immediately
adjacent” to Robles’s unit. That same day, Robles called the police to report this
violation of her restraining order. Also that day, three other residents called the police to
report violations of their respective restraining orders.
       On April 16, 2012, McErlain came within 10 feet of Robles in the first floor lobby
near her unit. McErlain approached Robles in “an aggressive and agitated fashion,”
making a fist and “pointing his middle finger in the air at her.” McErlain made no effort
to leave the area.
       On June 13, 2012, Robles was driving in her car, headed away from Park Plaza
Towers, when she saw McErlain walking in the opposite direction. McErlain “turned
towards her and glared at her, then made a fist, pointing his middle finger in the air in her
direction.”


                                              4
       At unspecified times since the original retraining order was issued, McErlain could
often be found “simply sitting in his car” in the underground parking garage. When
Robles or other neighbors entered the garage, McErlain would “begin flashing his
headlights and honking his horn for no apparent reason”; at other times, McErlain would
“simply sit and glare” at Robles and other residents.
       Also, since both before and after the original restraining order was issued,
McErlain has been observed videotaping and photographing Robles and the other
residents of Park Plaza Towers.
       McErlain had also violated the restraining order, by “repeatedly and regularly
turn[ing] toward” Robles and facing her “with hands on his upper legs, glaring at her in a
hostile and threatening manner.” Robles claimed that McErlain would not hesitate “to
keep [her] in fear by any means possible . . . .”
       Because of these continuing problems, Robles sought to renew the restraining
order. Robles averred that without a restraining order, McErlain would “harass and
terrorize” her in any way possible, including photographing her, “shining a bright,
blinding light” in her face, “growling and screaming horrible profanities” at her, “making
rude physical gestures” towards her, and vandalizing her car and storage locker, “all
without any provocation.”
       In opposition, McErlain explained that since the time of the original May 2011
restraining order, he has sought treatment for his bipolar disorder and since April 2012 he
has been on a “successful medical regimen which has markedly changed his personality
and his ability to get along with others and deal with stress.” McErlain disputed the
violations raised by Robles, claiming that he “has abided by all the terms of the 2011
order for years.” McErlain further claimed that, despite his “changed personality and
behavior,” some of the residents at Park Plaza Towers “have continued to taunt” him and
“discriminate against him,” and have “gone so far” as to file a lawsuit against him and his
mother in an effort to evict him.




                                              5
C.     The Hearing and the Court’s Order Renewing the Civil Harassment Restraining
       Order

       At the hearing on the renewal petition, Robles’s attorney made an offer of proof
that Robles would testify as to the matters set forth in her renewal request, and the matter
proceeded to cross-examination by McErlain’s attorney. When asked by defense counsel
if she was trying to get McErlain evicted, Robles stated, “I think our neighborhood would
be safer without him.” McErlain did not testify at the hearing. Instead, he presented two
character witnesses, his criminal defense attorney and his mother. At the time of the
hearing, ten criminal charges were pending against McErlain.
       In granting the renewal petition, the court explained as follows: “It is an ongoing
pattern of conduct that has to put in context. Certainly, it is good news that Mr. McErlain
is getting treatment, but that is not the issue. The issue . . . is whether there is a
reasonable belief that this conduct has continued and will continue. That is what the
Court has to consider . . .: Reasonable apprehension that the harassment will continue . . .
. [¶] . . . [¶] The Court does find there is reasonable apprehension that the harassment
will continue based on the evidence.”
       The court granted a three-year order, which is set to expire in May 2016.
                                      II. DISCUSSION
A.     Overview of Civil Harassment Restraining Orders
       “Section 527.6 was enacted ‘to protect the individual’s right to pursue safety,
happiness and privacy as guaranteed by the California Constitution.’ [Citations.]”
(Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1412.) “It does so by providing expedited
injunctive relief to victims of harassment. [Citation.]” (Ibid.) “[S]ection 527.6 enables
‘[a] person who has suffered harassment’—defined as ‘unlawful violence, a credible
threat of violence, or 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’—to ‘seek a temporary restraining order and an injunction prohibiting
harassment as provided in this section.’ (. . .§ 527.6, former subds. (a), (b).)” (Duronslet
v. Kamps (2012) 203 Cal.App.4th 717, 724.) “The course of conduct must be such as


                                                6
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).)
       A “ ‘[c]redible threat of violence’ ” is defined as “a knowing and willful statement
or course of conduct that would place a reasonable person in fear for his or her safety, or
the safety of his or her immediate family, and that serves no legitimate purpose.”
(§ 527.6, subd. (b)(2).)
       A “ ‘[c]ourse of conduct’ ” that seriously alarms, annoys, or harasses a person and
serves no legitimate purpose is defined as “a pattern of conduct composed of a series of
acts over a period of time, however short, evidencing a continuity of purpose, including
following or stalking an individual, making harassing telephone calls to an individual, or
sending harassing correspondence to an individual . . . .” (§ 527.6, subd. (b)(1).)
       A trial court generally must hold a hearing on a section 527.6 petition within 21
days of the court’s grant or denial of a temporary restraining order. (§ 527.6, subd. (g).)
“At the hearing, the judge shall receive any testimony that is relevant”—including
hearsay—“and may make an independent inquiry.” (§ 527.6, subd. (i); Duronslet v.
Kamps, supra, 203 Cal.App.4th at pp. 728-729 [hearsay evidence is admissible].)
Consistent with principles governing injunctions generally, an injunction under section
527.6 “is authorized only when it appears that wrongful acts are likely to recur.” (Russell
v. Douvan (2003) 112 Cal.App.4th 399, 402 (Russell).) Thus, while a single act of
violence or harassment, standing alone, generally does not require the issuance of an
injunction, it “may support a conclusion that future harm is highly probable.” (Id. at
p. 404.) Willful disobedience of a harassment injunction is a crime. (§ 527.6, subd. (s);
Pen. Code, § 273.6.)
       “If the judge finds by clear and convincing evidence that unlawful harassment
exists, an injunction shall issue prohibiting the harassment.” (§ 527.6, subd. (i).) The
court need not make express findings, but rather, “the granting of the injunction itself
necessarily implies that the trial court found that [the respondent] knowingly and
willfully engaged in a course of conduct that seriously alarmed, annoyed or harassed [the



                                             7
petitioner], and that [the petitioner] actually suffered substantial emotional distress.”
(Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1112 (Ensworth).)
B.     Standard of Review
       “The appropriate test on appeal is whether the findings (express and implied) that
support the trial court’s entry of the restraining order are justified by substantial evidence
in the record.” (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188 (R.D.).) “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.”
(Schild v. Rubin (1991) 232 Cal.App.3d 755, 762 (Schild).) “Inferences may be drawn
not only from the evidence but from the demeanor of witnesses and their manner of
testifying.” (Ensworth, supra, 224 Cal.App.3d at p. 1110.) “Where the trial court has
determined that a party has met the ‘clear and convincing’ burden, that heavy evidentiary
standard then disappears. ‘On appeal, the usual rule of conflicting evidence is applied,
giving full effect to the respondent’s evidence, however slight, and disregarding
appellant’s evidence, however strong.’ ” (Id. at p. 1111, fn. 2.)
       While we review the sufficiency of the evidence supporting the trial court’s factual
findings under the substantial evidence standard, the question of “whether [those] facts
. . . are legally sufficient to constitute civil harassment under section 527.6 . . . [is a]
question[ ]. of law subject to de novo review.” (R.D., supra, 202 Cal.App.4th at p. 188.)
C.     Sufficiency of the Evidence
       The parties disagree over what the trial court must find in order to renew a civil
harassment restraining order. McErlain contends it must find clear and convincing
evidence of recent harassment. Robles responds that the standard of proof for renewal is
a reasonable apprehension of continuing misconduct. Robles also suggests that she was
not required to show any harassment since the original restraining order was issued.
       Preliminarily, we observe that Robles’s argument about the requisite standard of
proof is premised upon a conflation of the showing required for a restraining order under
the Domestic Violence Protection Act (DVPA) with the more stringent requirements of


                                                8
civil harassment restraining orders authorized by section 527.6. “The DVPA . . .
permit[s] issuance of protective orders on a different, broader basis than permitted under
. . . section[] 527.6 . . . . [Citation.] Additionally, a lower level of proof is required for
issuance of a protective order under the DVPA . . . a preponderance of the evidence,
rather than clear and convincing evidence. [Citations.]” (Gdowski v. Gdowski (2009)
175 Cal.App.4th 128, 137.) Inasmuch as the DVPA affords broader protection and
requires a lesser standard of proof, we find no basis to rely on the cases cited by Robles
that analyze this different statutory scheme. (Cf. Lister v. Bowen (2013) 215 Cal.App.4th
319, 331-332 [standard is reasonable apprehension in renewing DVPA restraining
order]; Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1283 [same].)
       We pause to note that below McErlain did not object to the reasonable
apprehension standard advocated by Robles. In fact, his attorney argued to the court that
“the standard is a reasonable apprehension.” In any event, applying the correct standard
on appeal, we discern no reversible error by the trial court.
       To the extent McErlain argues that section 527.6 requires recent harassment,
nothing in the statutory language supports this assertion. The required finding that
harassment “exists” simply means that there is a reasonable likelihood of future
harassment if the injunction is not renewed. As a matter of traditional equitable
principles, “[i]njunctive relief will be denied where, at the time of the order or judgment,
no reasonable probability exists of the recurrence of the past acts. An injunction should
not be granted as punishment for past acts where it is unlikely that they will recur.
[Citation.]” (Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 184.)
       Scripps Health v. Marin (1999) 72 Cal.App.4th 324 (Scripps), interpreting the
parallel provisions set forth in section 527.8 supports our conclusion. “Section 527.8 was
. . . intended to enable employers to seek the same remedy for [their] employees as
section 527.6 provides for natural persons.” (Scripps, supra, 72 Cal.App.4th at pp. 333-
334.) Section 527.8 allows an employer “whose employee has suffered unlawful
violence or a credible threat of violence from any individual, that can reasonably be
construed to be carried out or to have been carried out at the workplace,” to seek an


                                               9
injunction “prohibiting further unlawful violence or threats of violence.” (§ 527.8,
subd. (j).) It defines “[c]redible threat of violence” as “a knowing and willful statement
or course of conduct that would place a reasonable person in fear for his or her safety, or
the safety of his or her immediate family, and that serves no legitimate purpose.”
(§ 527.8, subd. (b)(2).) It then defines “ ‘[c]ourse of conduct’ ” as “a pattern of conduct
composed of a series of acts over a period of time, however short, evidencing a continuity
of purpose . . . .” (§ 527.8, subd. (b)(1).) “If the judge finds by clear and convincing
evidence that the respondent engaged in unlawful violence or made a credible threat of
violence, an injunction shall issue prohibiting further unlawful violence or threats of
violence.” (§ 527.8, subd. (j).)
       In Scripps, the court observed that “at first glance the express language of section
527.8, subdivision (f) appears to provide that once the trial court finds by clear and
convincing evidence a defendant has engaged in an act of unlawful violence a permanent
injunction shall issue prohibiting further unlawful violence. However, a closer look at
the subdivision within the context of the entire statute, its underlying legislative intent
and the nature of injunctive relief, persuades us such a literal interpretation cannot be
given to the disputed statutory language.” (Scripps, supra, 72 Cal.App.4th at p. 332.)
       The court noted that “injunctive relief lies only to prevent threatened injury and
has no application to wrongs that have been completed. [Citation.]” (Scripps, 72
Cal.App.4th at p. 332.) It added: “Our review of the underlying legislative history and
documents relevant to the enactment of section 527.8 has disclosed no evidence of a
legislative intent to alter the traditional nature of prohibitory injunctive relief in this
setting.” (Id., at p. 335.) It therefore held that: “[T]o obtain a permanent injunction
under section 527.8, subdivision (f), a plaintiff must establish by clear and convincing
evidence not only that a defendant engaged in unlawful violence or made credible threats
of violence, but also that great or irreparable harm would result . . . if a prohibitory
injunction were not issued due to the reasonable probability unlawful violence will occur
in the future.” (Ibid., fn. omitted.) The court also indicated (in dictum) that the same
standard would apply under section 527.6. (Scripps, supra,72 Cal.App.4th at p. 333.)


                                               10
       Accordingly, we disagree with both parties. Robles is not automatically entitled to
a renewed civil harassment restraining order. Although past harassment may be taken as
a given, a plaintiff seeking a renewal injunction still must establish a reasonable
probability that, if the injunction is not renewed, the defendant will resume his or her
harassing course of conduct.
       At the same time, Robles is not required to show any further harassment since the
original injunction was issued-much less any recent further harassment. “Injunctive
relief can be denied where the defendant voluntarily discontinues the wrongful conduct.
[Citation.]” (Cisneros v. U.D. Registry, Inc. (1995) 39 Cal.App.4th 548, 574.) However,
it does not have to be denied unless the trial court finds that the discontinuance is both
voluntary and in good faith. (Phipps v. Saddleback Valley Unified School Dist. (1988)
204 Cal.App.3d 1110, 1118.)
       Here, the trial court could find it was reasonably probable that, absent a renewed
injunction, McErlain would engage in renewed harassment. Section 527.6 requires “a
pattern of conduct composed of a series of acts over a period of time, however short,
evidencing a continuity of purpose,” which is “directed at a specific person that seriously
alarms, annoys, or harasses the person, and that serves no legitimate purpose.” (§ 527.6,
subd. (b)(1) & (3).) Thus, in the original injunction proceeding, the trial court necessarily
found not only that McErlain had engaged in harassment, but also that his harassing
conduct evidenced a continuity of purpose.
       After the original injunction was granted, McErlain displayed continued
antagonism toward Robles. He videotaped Robles and posted derogatory statements
about her on the front door of his rental unit, which is adjacent to Robles’s unit. He had a
neighbor contact Robles and give her a picture of him, as he stood nearby watching in the
hallway. He also made rude and threatening gestures towards Robles on numerous
occasions. McErlain also would sit in his car in the parking garage and would flash his
lights and honk his horn at Robles and other neighbors.
       McErlain maintains that the incidents subsided after he was properly medicated.
However, the record reflects at least two of the incidents occurred after McErlain was on


                                             11
medication. More than two years after the original restraining order was issued,
McErlain was engaging in confrontational behavior toward Robles. Based on these facts,
the trial court could reasonably find that McErlain continued to harass and vex Robles.
       We conclude that the trial court’s issuance of the renewed civil harassment
restraining order was supported by substantial evidence.
D.     Evidentiary Issues
       McErlain next contends that the trial court committed several evidentiary errors,
which require the reversal of the renewed civil harassment restraining order. According
to McErlain, the court erred in admitting evidence of the pending criminal charges
against him, excluding the declarations of several character witnesses, and excluding
evidence pertaining to his favorable changed circumstances. He also claims the trial
court erred in failing to issue rulings on his evidentiary objections lodged against
Robles’s renewal petition.
       “ ‘ “Broadly speaking, an appellate court reviews any ruling by a trial court as to
the admissibility of evidence for abuse of discretion.” ’ [Citation.] The court’s
‘ “discretion is only abused where there is a clear showing [it] exceeded the bounds of
reason, all of the circumstances being considered.” ’ [Citation.] However, even where a
trial court improperly excludes [or admits] evidence, the error does not require reversal of
the judgment unless such error resulted in a miscarriage of justice. (Cal. Const., art. VI,
§ 13.) [The appellant] has the burden to demonstrate it is reasonably probable a more
favorable result would have been reached absent the error. [Citation.]” (Poniktera v.
Seiler (2010) 181 Cal.App.4th 121, 142.)
       1.     Pending Criminal Charges
       McErlain claims that the trial court erred in admitting evidence pertaining to the
pending/unadjudicated criminal charges against him. McErlain, however, did not object
to the challenged evidence below. In fact, the record reflects that it was McErlain’s own
attorney who sought to introduce evidence pertaining to the pending charges. Defense
counsel, who incidentally also represents McErlain on appeal, wanted to question the
attorney representing McErlain in the criminal matters so that he could “describe what


                                             12
[McErlain] is being accused of in those criminal matters.” Specifically, defense counsel
sought to introduce evidence that the pending criminal charges, stemming from violations
of the various restraining orders against McErlain did not involve “any . . .violence.”
       The trial court ruled that the criminal matters were “not relevant” to the instant
proceedings. Nevertheless, defense counsel was able to elicit from the criminal defense
attorney that he was representing McErlain in “criminal matters,” all of which were
“currently pending.” On cross-examination, the criminal defense attorney testified that
ten criminal charges were pending against McErlain.
       On appeal, McErlain now claims the challenged evidence was irrelevant and, thus,
inadmissible. This argument not only fails because it was not raised below, but also
because any possible error in considering this evidence was clearly invited by McErlain
himself. (Frittelli, Inc. v. 350 North Canon Drive, LP (2014) 202 Cal.App.4th 35, 41
[failure to raise evidentiary error below forfeits issue on appeal]; Transport Ins. Co. v.
TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1000 [appellant cannot complain of error
personally invited].) Nevertheless, even considering the merits of this claim, it
necessarily fails.
       Assuming arguendo that the limited evidence regarding the existence of the
pending criminal charges against McErlain was irrelevant, he has not argued, or carried
his burden on appeal to show that it is reasonably probable a more favorable result would
have been reached absent the purported error. (Poniktera v. Seiler, supra, 181
Cal.App.4th at p. 142.)
       2.     Supporting Declarations and Changed Circumstances
       McErlain argues that the court erred in excluding “several declarations from
witnesses who know him and attested to his improved behavior during the prior year.”
He claims the challenged evidence, some of which pertained to his “medical diagnosis
and recent treatment” was relevant in determining the “likelihood of any future bad
conduct” on his part.
       Evidence Code section 210 states: “ ‘Relevant evidence’ means evidence,
including evidence relevant to the credibility of a witness or hearsay declarant, having


                                             13
any tendency in reason to prove or disprove any disputed fact that is of consequence to
the determination of the action.” “The test of relevance is whether the evidence tends
‘logically, naturally, and by reasonable inference’ to establish material facts such as
identity, intent, or motive.” (People v. Garceau (1993) 6 Cal.4th 140, 177, disapproved
on another point in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.) “Evidence is
relevant when no matter how weak it is it tends to prove a disputed issue.” (In re Romeo
C. (1995) 33 Cal.App.4th 1838, 1843.) “ ‘[T]he trial court is vested with wide discretion
in determining relevance.’ ” (People v. Sanders (1995) 11 Cal.4th 475, 512.)
       Applying those rules here, we conclude that the trial court was well within its
discretion to exclude the numerous declarations from friends and/or family, which
describe McErlain’s new and improved behavior. This evidence was cumulative. More
importantly, the manner in which McErlain acted around other people simply was not
relevant to how he conducted himself around Robles.
       To the extent it can be argued that the trial court erred in excluding the declaration
from McErlain’s treating psychiatrist, as well as one from the neuropsychiatrist hired by
McErlain’s criminal defense attorney, any such error did not result in a miscarriage of
justice. McErlain sought to introduce this evidence to establish that his behavior had
changed since April 2012, when he began to positively respond to medication taken for
his bipolar disorder. However, the record reflects that McErlain engaged in harassing
behavior as late as June 2012. In other words, McErlain has not carried his burden on
appeal to show that the purported error was prejudicial. (Poniktera v. Seiler, supra, 181
Cal.App.4th at p. 142.)
       3.     Ruling on Objections
       McErlain also claims that the trial court erred in failing to issue rulings on his
evidentiary objections lodged against Robles’s renewal petition. For each of these
objections McErlain challenged the relevancy of Robles’s statements, as well as her
veracity. However, at no time during the hearing did McErlain seek to secure a ruling on
his evidentiary objections.



                                             14
       The standard for appellate review of evidentiary objections made but not resolved
in the trial court is somewhat problematic. As a general rule, “a party objecting to the
admission of evidence must press for an actual ruling or the point is not preserved for
appeal. [Citations.]” (People v. Hayes (1990) 52 Cal.3d 577, 619; but see Reid v.
Google, Inc. (2010) 50 Cal.4th 512, 517, 532-533 [where written evidentiary objections
are properly filed before summary judgment hearing, they are not waived by trial court’s
failure to rule].) Reid v. Google, Inc., supra, 50 Cal.4th 512 resolved certain aspects:
written evidentiary objections made prior to the hearing on a summary judgment motion
are deemed made at the hearing on the motion (id. at pp. 526, 531-532, § 437c, subd.
(b)(5); see id. subd. (d)); and rulings not made in the trial court are deemed overruled in
the trial court’s consideration of the motions and are preserved for appeal. (Reid v.
Google, Inc., supra, 50 Cal.4th at pp. 532-535; Jolley v. Chase Home Finance, LLC
(2013) 213 Cal.App.4th 872, 890.) A corollary to this latter rule is that the appellate
court assumes that the trial court considered the evidence notwithstanding the
objectionable (but not excluded) evidence in ruling on the merits of the motion made
under section 437c. (See Reid v. Google, Inc., supra, 50 Cal.4th at p. 526.)
       The instant case, however, does not involve a summary judgment motion. In any
event, we reach the merits of McErlain’s evidentiary claim and conclude it fails. First,
the trial court accepted Robles’s offer of proof that she would testify in conformance with
the facts raised in the renewal petition and in her trial brief. This determination
necessarily represents the court’s implied evidentiary ruling that the facts alleged in
Robles’s petition were relevant and that there was adequate foundation upon which
Robles made her assertions. Second, McErlain’s counsel agreed to the offer of proof and
proceeded to cross-examine Robles in an effort to undermine the veracity of her
statements. After hearing the evidence, the trial court found in favor of Robles.
       As explained ante, on appeal, we resolve all conflicts in the evidence in favor of
the prevailing party, and defer to the trial judge on issues of fact and credibility. (Schild,
supra, 232 Cal.App.3d at p. 762.) Applying this rule, we conclude the trial court acted



                                              15
well within its discretion in impliedly ruling that statements raised in Robles’s renewal
petition were relevant and credible.
E.     Attorney Fees
       Finally, McErlain contends that the trial court erred in awarding attorney fees to
Robles because he opposed the renewal motion in “good faith” and also because Robles
failed to provide the “requisite” information to the court for determining the
reasonableness of the fees. These contentions are without merit. However, as we shall
explain, there is merit to McErlain’s argument that the trial court erred in applying an
enhancement to the fees awarded.
       1.     Authority to Award Fees
       In actions for injunctive relief against harassment, the prevailing party “may be
awarded court costs and attorney’s fees . . . .” (§ 527.6, subd. (r); Krug v. Maschmeier
(2009) 172 Cal.App.4th 796, 800-802, & fn. 5 (Krug).) The decision whether to award
attorney fees to a prevailing party is a matter committed to the discretion of the trial
court. (Krug, supra, 172 Cal.App.4th at p. 802.) We find no abuse of discretion here.
       McErlain suggests that his good faith opposition to Robles’s renewal petition
justified a denial of fees in this case. He cites no authority for this novel proposition,
which is, in fact, contrary to case law. A different panel of this division explained in
Krug, supra, 172 Cal.App.4th at page 803, that section 527.6, unlike other statutes, does
not make an award of attorney fees contingent upon the conduct of the parties.
Accordingly, Krug held that a prevailing defendant may be awarded attorney fees
irrespective of whether the plaintiff had brought the action in good faith. (Id. at pp. 802-
803.) So, too here, McErlain’s alleged good faith in opposing the action presents no bar
to Robles’s recovery of attorney fees.
       Alternately, McErlain argues that Robles was not entitled to fees because she did
not recover all of the relief she requested. This contention is without merit. Robles
requested and was granted a renewal of the restraining order. She was the prevailing
party. That the order granting the renewal modified some of Robles’s requests does



                                              16
nothing to alter this conclusion. In sum, the trial court did not abuse its discretion in
awarding attorney fees to Robles as the prevailing party.
       2.     Documentation Required
       Citing Martino v. Denevi (1986) 182 Cal.App.3d 553 (Martino) and Best v.
California Apprenticeship Council (1987) 193 Cal.App.3d 1448 (Best), McErlain
contends an attorney fees award cannot be based solely on declarations of counsel as to
the total fees incurred, but must be supported by itemized time sheets or billing records
and by declarations detailing the experience and expertise of the attorney and attesting to
the reasonableness of the fees charged. Not so.
       It is well established detailed billing records are not required to affirm an attorney
fees award. “In California, an attorney need not submit contemporaneous time records in
order to recover attorney fees. . . . Testimony of an attorney as to the number of hours
worked on a particular case is sufficient evidence to support an award of attorney fees,
even in the absence of detailed time records. [Citations.]” (Martino, supra, 182
Cal.App.3d at p. 559; see also Steiny & Co. v. California Electric Supply Co. (2000) 79
Cal.App.4th 285, 293.)
       The cases McErlain cites do not aid him. In Martino, supra, 182 Cal.App.3d 553,
the court reversed an attorney fees award where “[t]he only evidence presented in support
of the motion for attorney fees was the attorney’s request for a flat fee for ‘services
rendered.’ No documents, such as billing or time records, were submitted to the court,
nor was an attempt made to explain, in more than general terms, the extent of services
rendered to the client.” (Id. at pp. 559-560.) Rather, the attorney testified that he
determined the fee to be paid based on a “general ‘feeling’ ” about the case. (Id. at
p. 560.) This, the court determined, was not sufficient “ ‘ evidence’ ” to support an
award of $40,000 in attorney fees. (Id. at p. 560.)
       Here, unlike in Martino the attorney fees request was adequately supported by a
declaration signed under penalty of perjury by Robles’s attorney, which set forth the
billing rate and the number of hours worked in preparing the renewal petition. It was not
the kind of bare “request for a flat fee” rejected by the appellate court in Martino.


                                              17
       Equally misplaced is McErlain’s citation to Best, supra, 193 Cal.App.3d 1448.
That case, which actually affirmed an award of attorney fees, stands for the general
proposition that to have an adequate basis for determining a reasonable fee, a court must
have a relevant and appropriate compilation of hours. (Id. at pp. 1470-1472.) Nothing in
Best suggests that the documentation in this case was so inadequate or deficient, that the
court could not award fees without abusing its discretion.
       Accordingly, we conclude the trial court did not abuse its discretion in awarding
attorney fees to Robles.
       3.     Enhancement
       McErlain also argues that the trial court improperly added a 20 percent
enhancement. Originally, Robles’s counsel had requested a 40 percent “bump” because
he had brought a recent case to the court’s attention, which purportedly set forth the
appropriate standard for renewing civil harassment orders.2 Counsel also argued that the
“extraordinary circumstances” of the instant case, together with the numerous pending
criminal cases also justified an enhancement. The trial court granted the enhancement,
ruling: “Well, it’s an unusual situation. I agree that 40 percent is probably reasonable,
but the Court will grant 20 percent.” This was error.
       As explained in Ketchum v. Moses (2001) 24 Cal.4th 1122. (Ketchum) citing
Serrano v. Priest (1986) 20 Cal.3d 25, 48 (Serrano III): “[A] court assessing attorney
fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the
time spent and reasonable hourly compensation of each attorney . . . involved in the
presentation of the case.’ [Citation.] [The California Supreme Court] expressly approved
the use of prevailing hourly rates as a basis for the lodestar . . . .” (Ketchum, supra, 24
Cal.4th at pp. 1131-1132.)
       “[T]he lodestar is the basic fee for comparable legal services in the community; it
may be adjusted by the court based on factors including, as relevant herein, (1) the
novelty and difficulty of the questions involved, (2) the skill displayed in presenting

2
  As discussed ante, the cases cited by Robles’s counsel pertain to restraining orders
under the DVPA, not civil harassment restraining orders under section 527.6.

                                             18
them, (3) the extent to which the nature of the litigation precluded other employment by
the attorneys, (4) the contingent nature of the fee award. (Serrano III, supra, 20 Cal.3d at
p. 49.) The purpose of such adjustment is to fix a fee at the fair market value for the
particular action. In effect, the court determines, retrospectively, whether the litigation
involved a contingent risk or required extraordinary legal skill justifying augmentation of
the unadorned lodestar in order to approximate the fair market rate for such services. The
‘ “experienced trial judge is the best judge of the value of professional services rendered
in his court, and while his judgment is of course subject to review, it will not be disturbed
unless the appellate court is convinced that it is clearly wrong.” ’ (Ibid.)” (Ketchum,
supra, 24 Cal.4th at p. 1132.)
       The lodestar adjustment method, which includes a multiplier applied to enhance
the lodestar amount, is not applicable to cases, such as this one, which do not involve a
fee-shifting statute, contingent risk to the attorney, or the enforcement of an important
public right or policy. (Serrano III, supra, 20 Cal.3d at p. 49; Ketchum, supra, 24 Cal.4th
at p. 1132.)
       On this record we conclude that enhancement of the fees was inappropriate
because counsel’s lodestar figure already factored in results obtained, any novelty and
difficulty of the case and the quality of the litigation. (Ketchum, supra, 24 Cal.4th at
p. 1132.) This was not a particularly difficult or extraordinary case warranting an
enhancement. Moreover, counsel did not face the risk of a contingency fee agreement, as
the record reflects that this matter was billed on an hourly basis.
       We conclude the trial court abused its discretion in awarding a fee enhancement.
Accordingly, we reverse for a redetermination of the amount of attorney fees Robles is
entitled to receive as the prevailing party.
                                    III. DISPOSITION
       We reverse the order granting attorney fees and remand for redetermination of the
amount of fees based on a straight lodestar calculation, without any enhancements. In all
other respects, the judgment is affirmed. Each party to bear their own costs on appeal.



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                                 _________________________
                                 REARDON. J.


We concur:


_________________________
RUVOLO, P. J.


_________________________
RIVERA, J.




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