California Court of Appeal Dec 24, 2013 No. D062825Unpublished
Filed 12/24/13 Signs v. Brzezinski CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
LORI SIGNS, D062825
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2012-00099114- CU-HR-CLT) CHARLES BRZEZINSKI,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Leo Valentine,
Jr., Judge. Affirmed.
Stephen Temko and Dennis Temko for Defendant and Appellant.
Lori Signs, in pro. per., for Plaintiff and Respondent.
Defendant Charles Brzezinski challenges the sufficiency of the evidence supporting the
trial court's issuance of a civil harassment restraining order against him. He further contends
the court abused its discretion when it denied his motion for a new trial. We affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. The Civil Harassment Restraining Order
On June 18, 2012, plaintiff Lori Signs testified at a hearing in which her friend, Lisa
Reimer, sought a domestic violence restraining order against Brzezinski. Heather Keznetzoff,
who is Signs's niece and lives with Signs, and Carolyn Crow, who is Signs's assistant, also
attended the hearing as potential witnesses, but neither was called to testify. Immediately after
the hearing, events occurred outside the courthouse that led Signs to seek her own restraining
order against Brzezinski.
Signs filed a Request for Civil Harassment Restraining Orders form (the Request Form)
seeking to restrain Brzezinski from harassing Signs, Keznetzoff, and Crow. Signs alleged
under oath in the Request Form that "as [Signs, Keznetzoff, and Crow] left the courthouse,
[Brzezinski] roll[ed] down his Dodge pickup window and yelled[,] 'I'm gonna get all of you
just wait.' " Signs included on the Request Form prior instances of harassment by Brzezinski,
including that he "stalked [her] to Palm Springs, shows up unannounced in many public places,
trespasses on [her properties], [and] sends threatening texts[.]" Signs further stated that she felt
"scared," "threatened," and "went back into [the] courthouse to seek protection."
Signs supported her restraining order request with substantially similar declarations
from herself, Keznetzoff, and Crow. Signs's declaration described the incident as follows:
"As I exited the courthouse [Brzezinski] pulled up in his Dodge pick- up (black), rolled down his window[,] with rage[,] anger and violence in his voice, he screamed out and pointed at us[,] I'm coming after you! I (we) ran back into the courthouse (knowing his past history of violence)[,] told the courthouse about the incident and they directed me to request this order for my safety and protection. We are single women who[] live 2
alone and are in fear for our lives. We have a witness that has seen the entire incident."
The court immediately issued a temporary restraining order protecting Signs,
Keznetzoff, and Crow and set a further hearing on a restraining order for July 10, 2012.
Brzezinski opposed the request, denying that the courthouse or any prior harassment
had occurred. He claimed in a declaration that at the time of the alleged courthouse incident he
was speaking on his cell phone to Allison Masters, the mother of his children, and that she
would corroborate that she did not hear Brzezinski yell.1 His declaration also contained a
request for a continuance to obtain discovery from the courthouse surveillance cameras, which
he claimed would establish the incident did not occur.
In reply, Signs submitted the declaration of a bystander who witnessed the courthouse
incident and stated it had occurred as Signs said. Signs and Crow also submitted declarations
stating that Crow works only a few blocks from Brzezinski's residence and reiterating Crow's
request that the restraining order continue to protect her from Brzezinski.
At the outset of the July 10, 2012, hearing, Brzezinski requested a continuance so he
could depose Signs. The court denied the request, suggesting Brzezinski might obtain the
equivalent of a deposition by examining Signs under oath during the hearing. The court heard
testimony from Signs, Brzezinski, and Crow.
Signs testified about her relationship with Brzezinski and his prior harassment of her.
She denied ever having an intimate relationship or living with him. She described attending a
concert in Palm Springs during which Brzezinski "came up and went in [her] face and was,
'boo,' like trying to intimidate [her]. [Signs] was like 'oh, my gosh, he's here.' " Signs also
1 Masters did, in fact, submit such a declaration. 3
testified that on several occasions when she was having her nails done, Brzezinski entered the
shop and stared at her the whole time. She also described instances when she was boating at
lakes and Brzezinski appeared "just out of nowhere." She described text messages Brzezinski
sent her within the past two years in which he stated "I'm going to get you," "you and I belong
together," and "you know we belong together." Signs explained that these incidents had
occurred over the course of years and that they seemed to subside (though not completely)
when Brzezinski was in a romantic relationship but would resume when the relationship ended.
As for the courthouse incident, Signs testified that after she left the June 18 hearing, she
encountered Brzezinski at the corner of Ash Street and Sixth Avenue. He was in his truck on
the opposite side of the street with the passenger window rolled down. Signs testified that she
"heard screaming, just violent screaming," at which point she "[j]ust froze." Brzezinski then
pointed his finger at Signs, Keznetzoff, and Crow, and screamed obscenities, saying "I'm going
to get all of you. Just wait. I'm coming after you." Signs testified that she attempted to obtain
security camera footage from nearby businesses but was told none existed.
Brzezinski then testified that he had been in a sexual relationship with Signs in 2003
and had lived primarily at her house for about nine months. He denied stalking Signs to the
Palm Springs concert, sending her any texts within the past two years, or seeing her at nail
salons within the past several years. Brzezinski admitted that he and another woman were
ordered by a court to attend anger management classes in another domestic violence case, but
he denied he had hit the woman.
Regarding the courthouse incident, Brzezinski acknowledged seeing Keznetzoff and
Crow (but not Signs) from his truck at an intersection near the courthouse and that his
4
passenger window was rolled down because it was a hot day and his truck was black.
Brzezinski claimed, however, it was Keznetzoff and Crow who yelled, cursed, and made
obscene hand gestures toward him. He maintained that he was speaking to Masters on his cell
phone at the time and did not say a word to Keznetzoff or Crow but, rather, rolled up his
window, ignored the women, and drove off.
Crow testified that she has known Signs for over 30 years and has never known Signs to
have dated or lived with Brzezinski. Crow then described two courthouse incidents involving
Brzezinski on June 18. The first occurred at the intersection of Cedar and Ash Streets2 and
involved Crow, Keznetzoff, and Brzezinski (but not Signs). Crow testified Brzezinski rolled
down the window of his truck and "very enraged," yelled "I'm going to get you all. I'm coming
after you." Crow stated she was frozen in fear and was terrified of Brzezinski. Crow and
Keznetzoff then returned to the courthouse and informed a bailiff and Signs what had occurred.
Crow, Signs, and Keznetzoff then left the courthouse to walk to a different court location to
process restraining order paperwork against Brzezinski.
According to Crow, that's when the second incident occurred, this time at the corner of
Ash Street and Sixth Avenue. Signs was present on this occasion. Brzezinski allegedly
"screamed the same type of obscenities out the window in a very threatening type of manner
that [Crow] took very seriously." Crow explained on cross-examination that her declaration
did not distinguish between the two incidents because she viewed them both as "the same
thing, he had attacked us"; she was unfamiliar with restraining order proceedings; and she was
2 References elsewhere in the record suggest Crow intended to refer to the intersection of Cedar Street and Sixth Avenue. 5
rushing because she understood from the legal aid clinic at the courthouse that she had to meet
a 1:00 p.m. deadline in order to obtain a restraining order that same day.
The court found by clear and convincing evidence that a restraining order was
warranted:
"I based it upon the testimony of both Ms. Signs and Ms. Crow. I am satisfied that they have indicated that there were threats made against them; that it's clear to me from the physical appearance of Ms. Crow when she testified that she is disturbed, she is concerned, she looked frightened to the court. And to the extent that she testified that she was not a witness in the [June 18] proceeding and that these comments were made to her, I am satisfied by clear and convincing evidence that those comments were made."
Accordingly, the court enjoined Brzezinski from contacting or harassing Signs,
Keznetzoff, and Crow for three years.
B. Brzezinski's New Trial Motion
Brzezinski timely moved for a new trial on the bases of newly discovered evidence and
surprise.3 The newly discovered evidence took two forms: (1) security camera footage from
the courthouse, which Brzezinski contended conclusively established that the courthouse
incidents did not happen as Signs and Crow had testified; and (2) cell phone tower data, which
he argued showed that he drove home immediately after leaving the courthouse such that a
second courthouse incident involving Signs was impossible.
3 In connection with the new trial motion, the parties submitted numerous declarations and lodgments further substantiating their respective positions regarding whether Brzezinski had a history of harassment. Because it appears from the record that the trial court did not consider those materials in ruling on the motion, we have not considered them. 6
The basis for Brzezinski's surprise argument (as it relates to this appeal) was that the
Request Form and supporting declarations described only one courthouse incident but Signs
and Crow testified about two at the June 18 hearing.
Signs opposed the motion and the court denied it. As to the newly discovered evidence,
the court explained that the surveillance videos and cell tower data were merely cumulative of
Brzezinski's testimony concerning his whereabouts and, thus, did not constitute truly new
evidence. But the court also examined the purported new evidence and explained why it would
not have been persuasive in any event. The court described the surveillance videos' lack of
continuity and clarity as follows:
"The court has viewed those videos and, quite frankly, those videos sometimes show a person walking down the street and the very next moment they disappeared. [¶] I'm not sure that the videos are going to assist the court in trying to resolve this dispute. To the extent that it may show people in locations and vehicles moving, for the record, there is no audio on those tapes. Those tapes are depictions of -- it appears to be part of what is happening outside the premises, but, again, as I said, some of the vehicles that you see one moment in a position, the very next moment they are not there. [¶] And so I'm not sure how accurate they are and to the extent there is foundation that can be laid, that they would be admissible for purposes of evidentiary value. I suppose the court can look at it and you could probably point out to the court what you believe it depicts. And then it's an interpretation process."
Brzezinski's counsel conceded, as the court had observed, that "there are some sections
that do skip."
With regard to Brzezinski's cell phone tower data, the court explained that its recent
experience demonstrated the data did not justify a new trial:
"I have just finished a trial where I heard extensive -- I heard from more experts on cell sites for Sprint. [Counsel], I spent a couple of weeks in a trial where we heard from experts about cell sites and how they work and Sprint. And, quite frankly, depending on the traffic that is going 7
through one cell site, it may bounce a call off another cell site even though it's closest to that cell site. That does not prove anything to the court."
The court also emphasized the "he said, she said" nature of the parties' dispute and
explained that it had determined credibility based on the evidence as a whole:
"I have what you filed, documents, declarations from people on one side that says one thing. I have documents and declarations from other people on the other side that says just the opposite. Someone is gravely mistaken or someone is deliberately lying to the court. To the extent you are asking this court to decide what the truth is, the court has to rely upon its own assessment of the credibility of the evidence and make a decision. [¶] To that extent, it's important that the parties understand that that's all the court can do. That does not mean that that is the truth. It just means that's where the evidence has led the court."
"It was this court that was asked to assess that credibility. [¶] I did that. I did that based on many factors. Not just the allegation of what happened on a street, but the history between the parties as well as all the other evidence and the declaration that was brought before the court. So to the extent that you are asking for a new trial because of new evidence, I don't believe there is any new evidence for the court to grant a new trial."
This appeal followed.
II
SUFFICIENCY OF THE EVIDENCE
Brzezinski contends insufficient evidence supports the trial court's conclusions that he
harassed the women or that his alleged conduct "would cause a reasonable person to suffer
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.)
"If the judge finds by clear and convincing evidence that unlawful harassment exists, an
injunction shall issue prohibiting the harassment." (§ 527.6, subd. (i).) "In the discretion of
the court, on a showing of good cause, [an] injunction issued under [section 527.6] may
include other named family or household members." (§ 527.6, subd. (c).) 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 petitioner], and that [the petitioner]
10
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
Brzezinski argues at length that insufficient evidence supports the trial court's threshold
finding of harassment because the court based that finding entirely on a single incident at the
11
courthouse. The record, however, contradicts this claim. The court stated its finding of
harassment was "based . . . upon the testimony of both Ms. Signs and Ms. Crow." Signs
testified that Brzezinski had followed her to Palm Springs, lakes, and nail salons; and had sent
her threatening text messages. Crow corroborated Signs's testimony regarding the history of
Sign's relationship (or lack thereof) with Brzezinski. Therefore, the trial court's finding as it
relates to Signs was not, in fact, based on a single incident.
The finding of harassment as to Keznetzoff and Crow is also supported by substantial
evidence. Crow testified there were two incidents at or near the courthouse involving her,
Keznetzoff, and Brzezinski. Although the incidents were separated by only minutes, section
527.6, subdivision (b)(1), defines a " '[c]ourse of conduct' " as "a pattern of conduct composed
of a series of acts over a period of time, however short . . . ." (Italics added.) That Signs was a
participant in the second incident, but not the first, lends further weight to the treatment of the
two courthouse altercations as separate incidents. Additionally, with respect to Keznetzoff,
once the court determined a restraining order was appropriate as to Signs, it was within the
court's discretion upon a showing of good cause to extend it to Keznetzoff as a "named family
or household member[]." (§ 527.6, subd. (c).)
Furthermore, even if the court's finding of harassment were based on a single incident,
that still would not require reversal. Section 527.6's definition of "harassment" includes a
" '[c]redible threat of violence,' " which includes "a knowing and willful statement . . . that
would place a reasonable person in fear for his or her safety . . . ." (§ 527.6, subd. (b)(2).)
Under appropriate circumstances, this plain language allows for a finding of harassment based
on a single incident. The cases Brzezinski cites do not establish a blanket rule to the contrary,
12
but rather, demonstrate only that the single incidents at issue there did not establish a
likelihood of future harassment. (Russell, supra, 112 Cal.App.4th at p. 402 [physical
encounter between opposing counsel at courthouse unlikely to recur because by the time of the
injunction hearing they were no longer adversaries and were unlikely to encounter each other
again]; Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 336 [harassment of nurse by
patient's son unlikely to recur because patient transferred insurance to a different treatment
facility]; Leydon v. Alexander (1989) 212 Cal.App.3d 1, 3-4 [terminated employee had not
seen petitioner in eight years prior to incident and no indication he would harass her again]
(Leydon).)5
Here, by contrast, the record supports an implied finding by the trial court that—
unrestrained—Brzezinski would likely harass Signs, Keznetzoff, and Crow in the future.
Because Crow works near Brzezinski's home, it is not unlikely that they would encounter one
another again. Crow also testified that Brzezinski views her, Signs, and Keznetzoff as a trio.
Therefore, Brzezinski's history of harassing Signs, coupled with his threats of retaliation
against Keznetzoff and Crow, support an implied finding by the trial court that Brzezinski was
likely to follow through on his threat to Keznetzoff and Crow. (See, e.g., R.D., supra, 202
Cal.App.4th at pp. 189-190 ["the court could consider any evidence showing a likelihood of
future harassment, including evidence of conduct that might not itself constitute harassment"].)
5 Leydon is further distinguishable because it was decided before the Legislature amended section 527.6 "by adding . . . the 'credible threat of violence' to the definition of harassment along with the 'course of conduct' language. . . ." (Russell, supra, 112 Cal.App.4th at p. 402.) Thus, now a single incident of harassment "may support a conclusion that future harm is highly probable." (Id. at p. 404.) 13
Also unavailing is Brzezinski's reliance on Cochran v. Cochran (1998) 65 Cal.App.4th
488, to support his claim that his "rough language" did not constitute harassment because it
was "merely the 'steam' of an irascible temper." Cochran, however, examined the "outrageous
conduct" element of the tort of intentional infliction of emotional distress (id. at p. 494), a
standard not applicable to section 527.6. Moreover, key to the Cochran court's decision was
that it involved "parties to an intimate relationship gone bad [who] were now feuding," and to
allow a tort cause of action for every "exchange of hostile unpleasantries" would "needlessly
congest our courts with trials for hurts both real and imagined which are best resolved
elsewhere." (Id. at p. 498.) Although Brzezinski claims he and Signs had been parties to an
intimate relationship gone bad, the trial court appears to have found Signs and Crow more
credible on this point. Thus, we find Cochran inapplicable here.
Brzezinski's contention that his harassment could not have "cause[d] a reasonable
person to suffer substantial emotional distress" is also unavailing. (§ 527.6, subd. (b)(3).) His
reliance on People v. Ewing (1999) 76 Cal.App.4th 199 (Ewing), which involved criminal
stalking under Penal Code section 646.9, is of limited value. First, Ewing involved a criminal
statute subject to proof beyond a reasonable doubt, while civil harassment under section 527.6
requires only clear and convincing evidence. (Ewing, at p. 209; § 527.6, subd. (i).) Second, in
attempting to illuminate the substantial emotional distress standard arising under Penal Code
section 646.9, the Ewing court examined the severe emotional distress standard under the tort
of intentional infliction of emotional distress. The court acknowledged, however, that those
standards are not "synonymous because 'severe' is a stronger adjective than 'substantial.' "
(Ewing, at p. 210.) It is understandable that the Ewing court looked to that analogy, however,
14
because the court in Schild had also done so in the context of section 527.6. Indeed, in
considering the standard, both the Ewing and Schild courts observed that some degree of
emotional distress is inherent in a modern society: a "reasonable person must realize that
complete emotional tranquility is seldom attainable, and some degree of transitory emotional
distress is the natural consequence of living among other people in an urban or suburban
environment." (Schild, supra, 232 Cal.App.3d at pp. 763, 762; Ewing, at p. 210.)6 But even
Schild is of limited value to Brzezinski because the "harassment" in that case was—quite
literally—child's play compared to Brzezinski's conduct here: it involved "noise from a ball
and the verbal chatter by several people engaged in recreational basketball play in the
residential backyard . . . playing at reasonable times of the day for less than 30 minutes at a
time and no more than five times per week . . . ." (Schild, at p. 761.) Not surprisingly, then,
other courts addressing harassment under section 527.6 have found Schild's analysis
inapplicable to more severe conduct. (See, e.g., Brekke v. Wills, supra, 125 Cal.App.4th at
p. 1414 [defendant "cannot expect us to equate his contemptuous conduct [of sending
threatening letters to his teenage girlfriend's mother] with the act of children bouncing a
basketball"].) "[Interrupting] Saturday and Sunday afternoon naps" with basketball (Schild, at
p. 758), differs materially from threatening retaliation for testifying at a domestic violence
restraining order hearing. Thus, we, too, find Ewing and Schild inapplicable here and are
unpersuaded that Brzezinski's conduct could not "cause a reasonable person to suffer
6 Brzezinski's opening brief quotes this passage from Ewing. 15
Nor are we persuaded by Brzezinski's argument that insufficient evidence supports the
trial court's finding that Signs, Keznetzoff, and Crow actually suffered substantial emotional
distress. The Request Form states in several places that Signs feared Brzezinski and was in
fear for her life. Her declaration states, "We are single women who[] live alone and are in fear
for our lives." At the hearing, Signs testified she believed Brzezinski ha[d] a history of
violence and, therefore, "begg[ed] for protection from him . . . ." At the conclusion of the
hearing, she requested an escort from the courthouse to her vehicle.
Crow's declaration stated she took Brzezinski's threat "very literally." She testified at
the hearing that she is terrified of Brzezinski and "froze[] in fear" when he threatened her.
Crow explained that she "think[s] [Brzezinski] looks at [Signs, Keznetzoff, and Crow] as a trio,
that [they] all know each other and know [Signs]." Based on her testimony, the court stated,
"It is clear to me from the physical appearance of Ms. Crow when she testified that she is
disturbed, she is concerned, she looked frightened to the court."
Keznetzoff's declaration states, "[w]e are single women who[] live alone and in fear for
our lives." At the hearing, Signs represented to the court that Keznetzoff was available to
"state the same testimony" as Crow. In the interest of time, however, Keznetzoff did not
testify.
This direct evidence in the form of declarations and live testimony is sufficient to
establish each of the women actually suffered substantial emotional distress at the hands of
Brzezinski. (See Evid. Code, § 411 ["Except where additional evidence is required by statute,
the direct evidence of one witness who is entitled to full credit is sufficient for proof of any
fact."].) It also constitutes sufficient evidence from which the trial court could have drawn
16
reasonable inferences further supporting its findings. (Ensworth, supra, 224 Cal.App.3d at
p. 1110 ["Inferences may be drawn not only from the evidence but from the demeanor of
witnesses and their manner of testifying."].)
Accordingly, we find substantial evidence supports the trial court's issuance of the
restraining order.
III
ABUSE OF DISCRETION
Brzezinski also contends the trial court abused its discretion when it denied his motion
for a new trial, which was based on the alternate grounds of newly discovered evidence and
surprise. We disagree on both grounds and affirm.
A. Newly Discovered Evidence
"The trial court may grant a new trial on the basis of newly discovered evidence where
the moving party shows the evidence is newly discovered, reasonable diligence has been
exercised in its discovery, and the evidence is material to the moving party's case." (Wood v.
Jamison (2008) 167 Cal.App.4th 156, 161 (Wood).) "In the context of a motion for a new trial,
'material' means likely to produce a different result." (Ibid.)
"A trial court's broad discretion in ruling on a motion for new trial is accorded great
deference on appeal." (Plancarte v. Guardsmark (2004) 118 Cal.App.4th 640, 645.)
Generally, and "particularly when reviewing an order denying a new trial, the appellate court is
required to review the entire record to determine independently whether the error on which the
new trial motion is based is prejudicial." (Ibid.) But an exception applies when the motion
was denied by the same judge to whom the case was tried:
17
"There is always some conjecture in determining whether newly discovered evidence was likely to produce a different result where the case was tried to a jury. No one can say with certainty what the jury might have thought about the evidence. But where, as here, the same trial court to which the case was tried determines the new evidence was unlikely to have made a difference, there is no conjecture. We simply have no basis for contradicting the trial court. (Wood, supra, 167 Cal.App.4th at p. 161.)
We find this exception dispositive here, as the trial court made clear that neither the
surveillance camera footage nor the cell tower data were likely to produce a different outcome.
Contrary to Brzezinski's assertion that "the trial court never evaluated the new
evidence," the record reflects that "the court has viewed those videos" and found them lacking
in continuity, accuracy, and evidentiary value. Indeed, even Brzezinski's counsel had to
concede that "there are some sections that do skip." Further, the record does not establish that
the security camera footage from the courthouse would have captured the second altercation,
which occurred blocks away. Thus, we cannot say the trial court abused its discretion in
denying the new trial based on the surveillance videos.
The same holds true for the cell tower data. As the trial court explained, it had recently
"spent a couple of weeks in a trial where [the court] heard from experts about cell sites and
how they work and Sprint. . . . That does not prove anything to the court." Indeed, as the trial
court suggested, the cell tower data appears, on its face, to lack the reliability and specificity
needed to establish Brzezinski's precise locations at precise times. For example, Brzezinski
argues in his opening brief that when the first courthouse altercation occurred, cell tower data
"showed [he] pinged a tower 1.1 miles from the courthouse" and one minute later pinged
another tower 3.9 miles from the courthouse. For Brzezinski to travel that distance in that
amount of time would have required him to speed through downtown San Diego at an unlikely 18
120 miles per hour. It is more likely that the cell tower data simply does not provide the
pinpoint accuracy necessary to support Brzezinski's theory. Accordingly, the trial court did not
abuse its discretion in concluding the cell tower data did not justify a new trial.
B. Surprise
"A trial court may order a new trial based on surprise." (McCoy v. Pacific Maritime
Assn. (2013) 216 Cal.App.4th 283, 305; § 657, subd. 3.) "The surprise must have
detrimentally impacted the party moving for a new trial, but the movant must not have been
able to prevent or guard against it by ordinary prudence." (McCoy, at p. 305.)
Brzezinski contends surprise occurred when the Request Form and declarations
described one courthouse incident, but Signs's and Crow's live testimony described two. He
argues this was prejudicial because if he had known about Signs's two-incident theory he
would have obtained the Sprint cell tower data sooner, which he claims would have exonerated
him at the hearing. We are unpersuaded that if any surprise occurred, it was prejudicial.
First, as a general matter, we find the surprise argument less compelling in the context
of the expedited hearing procedure required by section 527.6. For example, even if the
pleadings had alleged two separate incidents, it is unlikely Brzezinski could have completed
the desired discovery from Sprint by the time of the expedited hearing. (See, e.g., Thomas,
supra, 126 Cal.App.4th at p. 650, fn. 11 [under § 527.6 "there is insufficient time in which to
conduct discovery"].) Moreover, we likely would not have found an abuse of discretion if the
trial court had denied Brzezinski a continuance to allow for discovery—if anything, granting
such a continuance might have been an abuse of discretion. (Thomas, at p. 650 [it "could
arguably be an abuse of discretion if a trial court allowed discovery to go forward at a time, or
19
in a manner, which interfered in any way with the prompt hearing on a petition under
§ 527.6"].)7 Therefore, simply by virtue of the expedited nature of section 527.6 hearings, we
surmise there may always exist a certain amount of unavoidable surprise in such proceedings.
Second, any surprise that prevented Brzezinski from obtaining discovery from Sprint
prior to the hearing was not prejudicial because, as discussed above, the trial court considered
the Sprint data in the context of Brzezinski's new-evidence argument and found it
unpersuasive. It is therefore unlikely that a different outcome would have resulted if
Brzezinski had obtained such data sooner.
Brzezinski raises other arguments in support of his surprise theory, but we view them as
more appropriately aimed at the sufficiency of the evidence supporting the restraining order.
Because we concluded above that substantial evidence supports the issuance of the restraining
order, we will not address those other arguments here.
IV
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
MCCONNELL, P. J. WE CONCUR:
NARES, J.
O'ROURKE, J.
7 We note that while one ground for Brzezinski's new trial motion was the trial court's denial of his motion for a continuance to conduct discovery, he does not appeal that ruling here. 20
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the issuance of a civil harassment restraining order, finding substantial evidence supported the trial court's determination that the defendant engaged in a course of conduct that caused the petitioner substantial emotional distress. The court further held that the trial court did not abuse its discretion in denying the motion for a new trial, as the proffered evidence was cumulative and not persuasive.
Issues
Whether substantial evidence supports the trial court's issuance of a civil harassment restraining order under Code of Civil Procedure section 527.6.
Whether the trial court abused its discretion in denying the defendant's motion for a new trial based on newly discovered evidence and surprise.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The court found by clear and convincing evidence that a restraining order was warranted”
“The court explained that its recent experience demonstrated the data did not justify a new trial”
“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.”