McHolick v. Rubino

A rare full reversal due to the fact the main act of interest was NOT directed to the plaintiff at all, not to mention that the other act described was CUTTING THE PROPERTY BOUNDARY HEDGE!  Dios Mio!  Send out the National Guard!

Judge Laura Matz abandons the law to become everyone's Nanny. 1 2


Filed 12/12/11  McHolick v. Rubino CA2/7



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  This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.











            Plaintiff and Respondent,






            Defendant and Appellant.




      (Los Angeles County

      Super. Ct. No. ES013883)




            APPEAL from an order of the Superior Court of Los Angeles County, Laura A. Matz, Judge.  Reversed.

            John Fu, under appointment by the Court of Appeal, for Defendant and Appellant.

            No appearance for Plaintiff and Respondent.





            Fortunato Rubino appeals from the civil harassment protective order issued pursuant to Code of Civil Procedure section 527.6 (section 527.6) in favor of Rebecca McHolick, contending there was insufficient evidence McHolick had suffered harassment within the meaning of the statute and the restraining order was overbroad.  We reverse.


The record on appeal is sparse.[1]  McHolick, representing herself, apparently filed a Request for Orders To Stop Harassment on June 21, 2010, which included a request for a temporary restraining order against Rubino, her 83-year-old next-door neighbor.  No copy of this application or any supporting materials have been included in the clerk’s transcript.  On the same date, the court issued a temporary restraining order and set the matter for an evidentiary hearing on July 9, 2010.  Again, the clerk’s transcript does not include copies of the court’s order or notice of hearing.  The civil case summary reflects an answer was filed by Rubino, but this document, too, has not been provided to us.

On July 9, 2010 McHolick and Rubino, each self-represented, appeared for the evidentiary hearing on McHolick’s restraining order request.[2]  McHolick, her daughter, Melissa Cartelli, and Rubino all testified in a series of informal question-and-answer exchanges with the court.

McHolick, who has not filed a respondent’s brief, initially told the court Rubino had threatened Cartelli with a handgun in 2008 when Cartelli was on McHolick’s property.  (Cartelli subsequently described the weapon as a BB gun that had been modified to look like a real handgun.)  According to McHolick, “we had a restraining order for two years for that.”  McHolick then testified Rubino continues to harass her:  McHolick started to describe an incident in early 2009, while the prior restraining order was in effect, during which Rubino threw a board of some sort onto her property.  Pressed for more recent specifics by the court, McHolick said in April 2010 Rubino had ordered his gardener to cut off the tops (approximately two feet) of bushes along the border between McHolick’s and Rubino’s property.  According to McHolick, the gardener was instructed to reach over to her side of the property line to cut the bushes.  McHolick presented a security tape for the court to view that had captured this episode.  McHolick also testified that one of her sprinkler heads had been cut off or damaged and a mound of trash and junk (also identified as diatomaceous earth) dumped on her property.[3]  McHolick blamed Rubino for these acts but had not witnessed him doing them. 

In response Rubino attempted to present letters from two other neighbors, who described him as a good neighbor.  The court replied, “It doesn’t matter whether you are a good neighbor to the other people.  The question is are you a good neighbor to them.”  Rubino denied having damaged the sprinklers in McHolick’s front yard or dumping dirt on her property and insisted he only told his gardener to cut off portions of McHolick’s plants that had crossed over to his own side of the property line.  Rubino also registered his own protests about McHolick’s conduct; but the court advised him that, without his own application for a restraining order, it could not issue orders directed against McHolick.  

After viewing McHolick’s videotape of the bush-cutting incident, the court concluded the gardener had topped portions of the plants on McHolick’s property.  The court stated, whether or not Rubino had instructed the gardener where to cut, “it was up to you to stop them from doing that . . . .  You need to leave their bushes alone.”  The court also commented, in response to Rubino’s complaint that Cartelli had provoked him in 2008 by brandishing a hacksaw, “I can’t imagine any set of circumstances under which I would threaten somebody with a gun or a BB gun.”

Immediately following that comment, the court stated it was issuing a civil harassment protective order.  As issued, the restraining order contained personal conduct orders prohibiting Rubino from harassing, assaulting, threatening or stalking McHolick or destroying her personal property and from contacting McHolick, directly or indirectly, by telephone, mail or e-mail, and a stay-away order requiring Rubino to stay at least 20 yards away from McHolick.  The order also contains the mandatory prohibition against owning or possessing any firearms.  (See § 527.6, subd. (k).)  The restraining order has an expiration date of July 8, 2013.

The July 9, 2010 minute order entered following the hearing states Rubino was served with a certified copy of the restraining order on that date by the clerk in open court.  Rubino filed a timely notice of appeal.


Section 527.6 authorizes a natural person who has suffered “harassment” to obtain an injunction prohibiting further harassment.[4]  Subdivision (b) of the statute defines “harassment” 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.  The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.”[5]  Subdivision (b)(3) defines “course 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 . . . .”

After the party sought to be enjoined has had notice and an opportunity to respond to the petition for an injunction, the court must hold an evidentiary hearing to receive relevant testimony “and may make an independent inquiry.”  (§ 527.6, subd. (d).)  “If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment.”  (Ibid.)  On appeal from an injunction prohibiting harassment under section 527.6, “we review the evidence before the trial court in accordance with [all] customary rules of appellate review.  We resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge . . . 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; accord, Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137 [injunction issued under § 527.6 is “reviewed to determine whether the necessary factual findings are supported by substantial evidence”]; USS‑Posco Industries v. Edwards (2003) 111 Cal.App.4th 436, 444.)

Even under this highly deferential standard of review, there is insufficient evidence to support the issuance of an injunction in favor of McHolick.  First, as to the 2008 gun-brandishing incident, which appears to have been directed at Cartelli, not McHolick, the trial court properly noted a restraining order had previously been granted based on that conduct and, without proof of more recent acts of harassment, a new injunction could not be issued.  What remains is a single act of trespass when Rubino’s gardener reached over the property line to trim McHolick’s bushes and, perhaps, one or two additional acts of minor vandalism involving dumping trash on McHolick’s lawn and damaging a sprinkler head. 

We by no means condone this conduct, which would appear to be actionable in tort, although undoubtedly not worth the effort and expense.  We also recognize it must be exasperating to have such a contentious and unpleasant relationship with your next-door-neighbor.  But there is simply no evidence in this record to support an implied finding that Rubino engaged in a course of conduct directed at McHolick “that seriously alarmed, annoyed, and harassed her; that would cause a reasonable person to suffer substantial emotional distress; and that actually caused plaintiff to suffer substantial emotional distress.”  (Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1404; see Schild v. Rubin, supra, 232 Cal.App.3d at pp. 762-763 [analogizing “substantial emotional distress” under § 527.6 to the tort of intentional infliction of emotional distress, which requires “highly unpleasant mental suffering or anguish ‘from socially unacceptable conduct’ [citation], which entails such intense, enduring and nontrivial emotional distress that ‘no reasonable [person] in a civilized society should be expected to endure it’”]; People v. Ewing (1999) 76 Cal.App.4th 199, 210 [“we can safely assume that the phrase . . . ‘substantial emotional distress’ entails a serious invasion of the victim’s mental tranquility”].)  McHolick did not testify that any of the more recent incidents she described seriously annoyed or disturbed her.[6]  In fact, the only testimony offered by McHolick relevant to this issue related to the expiration of the prior restraining order, rather than Rubino’s occasional and relatively petty current mischief:  “We’re worried about him maybe having another gun.  He doesn’t seem rational at times.  He just seems to go off, and I think he’s got some issues with women or something.”[7]  Yet there was no evidence proffered that Rubino had again brandished a gun or threatened violence.  This record does not support the broad injunction issued.

The Judges Guide to California Protective Orders, published by the Administrative Office of the Courts and its Center for Families, Children and the Courts, provides the following “tip”:  “Civil harassment cases involving neighbors . . . when the harassment has not been of a violent nature are often amenable to some form of alternate dispute resolution.”  (California Protective Orders (rev. 2010) § 8.12, p. 100.)  We encourage McHolick and Rubino to consider whether a third-party neutral could help them avoid future problems without the need for litigation and court orders.


            The restraining order is reversed.  Rubino is to recover his costs on appeal.




                                                                                    PERLUSS, P. J.


            We concur:




                        ZELON, J.




                        JACKSON, J.

[1]             As the party challenging the trial court’s ruling, it is Rubino’s obligation to provide an adequate record affirmatively demonstrating error.  (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58.)   

[2]             Although self-represented in the trial court, Rubino is represented by counsel on appeal.

[3]             McHolick also told the court she had found a dead rat on her property, but did not indicate when that had occurred and presented no evidence Rubino was in any way responsible for it.

[4]             Section 527.6, subdivision (a), provides, “A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an injunction prohibiting harassment as provided in this section.”

[5]             Notwithstanding the literal language of section 527.6, a single incident of unlawful violence is an insufficient basis for a civil harassment restraining order:  “An injunction is authorized only when it appears that wrongful acts are likely to recur.”  (Russell v. Douvan (2003) 112 Cal.App.4th 399, 401-402; accord, Babalola v. Superior Court (2011) 192 Cal.App.4th 948, 962.)

[6]             Although the trial court is entitled to consider the plaintiff’s demeanor in determining whether the defendant caused her substantial emotional distress (see Brekke v. Wills, supra, 125 Cal.App.4th at p. 1415; see also Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1110 [court can draw the conclusion plaintiff suffered substantial emotional distress based on the evidence of harassment itself]), nothing in the record suggests the court issued the restraining order based on its own assessment of McHolick’s mental state, rather than her actual testimony.

[7]              The court, apparently uncertain how seriously to consider this comment, responded by asking, “Do you have a degree in psychology?”

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