Opinion
D075969
05-29-2020
CLAUDIA LOPEZ, Plaintiff and Respondent, v. ELLEN SHLEGEL BARGHOUT, Defendant and Appellant.
Ellen Shlegel Barghout, in pro. per, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2019-00015819-CU-HR-NC) APPEAL from orders of the Superior Court of San Diego County, William Y. Wood, Bradley A. Weinreb, Judges. Affirmed. Ellen Shlegel Barghout, in pro. per, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Ellen Shlegel Barghout (Shlegel) appeals from a civil harassment restraining order and a subsequent order denying her request to terminate the restraining order. She contends her due process rights were violated when she was precluded from testifying, the trial court applied the wrong standard when it issued the restraining order, and the order impermissibly restricts constitutionally protected behavior. She further contends the court erred when it denied her request to terminate the restraining order. We conclude Shlegel has not demonstrated she is entitled to relief and affirm the orders.
FACTS
Shlegel and Claudia Lopez are next-door neighbors. Lopez lives with her adult daughter, her husband, and her mother and father. Shlegel lives with her husband, her son, and their dogs. An incident in March 2019 prompted Lopez to request that the trial court issue a civil harassment restraining order. Shlegel neglected to include Lopez's request for the restraining order in the appellate record. We must therefore glean the circumstances surrounding the parties' dispute primarily from Shlegel's response.
Shlegel moved next door to Lopez's family nearly three years before the March incident. Over the years, the neighbors "had numerous negative encounters." When Shlegel and her husband had only recently moved in, they approached the neighbors regarding repairing the fence separating their properties. Lopez's husband initially agreed to proceed with repairs; however, when Lopez's father returned from work that evening, he refused to pay for the repairs. As a result, Shlegel was unable to replace the fence in its entirety.
Shlegel subsequently complained about noise from the neighbors' weekend backyard parties. On one occasion, Shlegel registered a noise complaint which resulted in Lopez's family incurring a fine.
During the summer of 2018, Shlegel suspected someone in Lopez's family shot one of her dogs with a BB gun. Shlegel only discovered the BB during the fall when the dog fell ill with cancer. Shlegel stated, "Only three neighbors could have shot easily into the backyard. Again, past encounters with [Lopez's father], and because he had to pay a large fine after [Shlegel] filed a citizen's arrest due to his noisy, late night party, made [Shlegel] believe that he had shot her." Shlegel and her husband filed a police report; however, without any evidence, they had no recourse. They rotated a security camera that was located in the alleyway between the homes to face the neighbors' backyard "to gather evidence if any of [their] dogs [were] shot again." Lopez stated that Shlegel " 'added a camera on the side of her house pointing directly into [Lopez's] backyard,' " prompting Lopez to " 'put up a barrier on [her] side of the fence for privacy.' " Lopez claimed the barrier " 'ha[d] been knocked down by [Shlegel].' "
In March 2019, after the dog died, Shlegel posted a veterinarian's note along with a note and photo of her dog on the community mailbox. The veterinarian's note stated, "Radiographs of the [dog] revealed a single metallic foreign body (a BB) that was located under the skin of her neck." Shlegel's accompanying note displayed a photo of a dog; underneath the photo, the note stated, "This is Jasmine! [¶] . . . [¶] I know who did it. I know You and You Are my ENEMY for life. You mess with her, you mess with me. I hope you, [bastard], will lose your sleep at night. Only a low scum could harm a little girl like Jasmine. And you did it just to fuck with me. Bad move. [¶] Such a wonderful neighborhood with an 'amazing' neighbors next door, isn't?" (Sic.)
Shlegel stated she posted the notes "out of frustration." Someone "tore the note[s] . . . down from the mailbox on March 21." This made Shlegel "angry"; she "assum[ed] it was [Lopez's father] again."
The next day Shlegel posted an " 'update' note" on the community mailbox, "this time implying that it was [Lopez's family] who shot her" dog. The " 'update' note" stated that the dog had developed cancer at the site of injury, and, despite medical treatment, had passed away. It further stated, "You all asked me who did it, it was our 'lovely' Mexican neighbors next door, who did this in retaliation after I called police on them for having loud parties at night."
Lopez's family called local police when they saw the note. Police responded to Shlegel's residence, but only her husband was home. When Shlegel returned home, her husband asked her to remove the note from the mailbox. Shlegel did so, but when she turned to go home, she claimed Lopez and her family were "laughing [at] and heckling [her]" from their front lawn. Shlegel "started cursing at them[] and calling them bad names." She told them to "go back to Mexico." She later stated she "used foul language to express all the pain that [she] had inside of [her]," but claimed she "did not threaten or use[] violence against them."
Lopez claimed that Shlegel threatened her, saying, " 'Don't you touch her pretty little face, I'll kill you.' "
Shortly after this incident, Lopez filed a request for a civil harassment restraining order against Shlegel. Lopez further requested that Shlegel move the security camera directed at Lopez's property.
Shlegel filed a response to Lopez's request. In her response, Shlegel agreed not to post any more "notes" and indicated she "agree[d] to the orders requested[] [i]f they are mutual orders." She admitted she "did use bad language" because she "was very upset about [her] dog's death" but countered that Lopez's version of events (which does not appear in the record) was "largely exaggerated" and suggested Lopez "misunderstood" the "verbal insults . . . due to different accents and language barrier." She denied making "verbally threatening statements" and denied Lopez's allegations. She stated she "want[ed] [Lopez and her family] to be ordered to obey the City's noise ordinance" and "want[ed] them to be ordered not to shoot into or at [her] house, yard and dogs."
Shlegel, who is Russian, stated that English is her second language.
Shlegel submitted exhibits including copies of the notes she posted on the mailbox and photos depicting the alley and proximity of the neighboring backyards. Shlegel also submitted her own declaration, summarizing her version of events, and a declaration from her husband. Both declarations confirmed that Shlegel and her husband had positioned their security camera to face the neighbors' backyard.
Shlegel's declaration stated, after the BB incident she and her husband directed their home security company "to rotate the alleyway camera . . . to face their backyard, instead of our alleyway. The purpose of that one camera is not to spy or harass them, but to gather evidence if any of our dogs [were] shot again." Shlegel's husband's declaration stated that he had informed Lopez's family " 'not [to] be surprised if you see a camera facing their backyard.' "
Lopez and Shlegel appeared for a hearing on Lopez's request for a restraining order. The hearing was not transcribed; however, the record reflects that both parties were sworn to testify and Shlegel responded to questions under oath.
At a subsequent hearing Shlegel described her testimony, stating, "[T]he only thing I was allowed to say was like 'yes' or 'no' to a couple things, like, 'did you post the notes'? 'Yes, I did.' 'Did you curse'? 'Yes, I did.' [¶] But nobody asked me what had provoked this kind of, you know, behavior."
After the hearing, the trial court granted Lopez's request for a restraining order pursuant to Code of Civil Procedure section 527.6. The order directed Shlegel to lower the security camera below the fence line, stay five yards away from Lopez's residence, and stay 100 yards from Lopez and Lopez's family. The restraining order directed Shlegel not to "contact," "[h]arass, intimidate, molest, attack, strike, stalk, threaten, assault . . . , hit, abuse, destroy personal property of, or disturb the peace" of the protected parties—Lopez, her husband, her daughter, and her parents. The restraining order was imposed for three years.
Statutory references are to the Code of Civil Procedure unless otherwise specified.
The restraining order also prohibited Shlegel from owning or possessing firearms; however, Shlegel certified that she did not own or possess any firearms.
Shlegel promptly filed a request to terminate the restraining order. She attached a supporting declaration and a copy of the restraining order but did not include any additional evidentiary support. In her declaration, she claimed she did nothing to justify the restraining order and questioned why the focus was on what she said to her neighbors, instead of "what they did to provoke it." She acknowledged it was "wrong of [her]" to post the notes and curse at her neighbors, but claimed "[she] [was] not the one who ha[d] been a neighbor from [h]ell almost from day one." She acknowledged telling Lopez and her family, "[G]o back to Mexico," but claimed the statement "ha[d] nothing to do with racial discrimination." Shlegel denied telling them, as Lopez claimed, " '[G]o back to F.g Mexico, you F.g Mexicans.' " (Sic.) She also denied threatening her neighbors with murder, denied she was " 'crazy, mentally unstable or untrustworthy' like Ms. Lopez describe[d] [her]," and further denied she was " 'starting drama in [her] neighborhood.' " She claimed her statements were taken out of context and "made to be something they were not." She claimed it was her "First Amendment right in this particular situation to express [her] feelings." Shlegel stated that, at the prior hearing, she "was under [the] impression that [the judge] didn't read [her] declaration," and complained that she "was never asked to tell [her] side of what had happened." Contradicting her prior declaration, Shlegel claimed she "did not know about any camera pointing anywhere or a privacy screen [until] [she] read about it in [Lopez's] restraining order request."
Shlegel stated she is "not a prejudice[d] person," that she is "married to a Hispanic man, and [her] son is half Hispanic."
Shlegel and Lopez both appeared at a hearing on Shlegel's request to terminate the restraining order. At the outset of the hearing, the court indicated it had reviewed Shlegel's papers and perceived Shlegel's request as a request for reconsideration. The court explained it understood that Shlegel disagreed with the order and believed that Lopez had exaggerated or misled the prior judge. The court emphasized that Shlegel's disagreement with the facts was not a legal basis to set aside the restraining order. The court inquired whether Shlegel had additional information to present. Shlegel indicated she now had police reports reflecting prior incidents involving the neighbor. The court emphasized this did not amount to new evidence or information that was not previously available at the prior hearing, and additionally found the evidence was insufficient to justify modifying or terminating the restraining order.
The judge told Shlegel, "I have a record in front of me that says at the time of the hearing the [c]ourt took sworn testimony from the parties, made a reason[ed] judgment based upon the evidence that was heard. . . . [Y]ou're telling me that you didn't think the [c]ourt got it right?" Shlegel replied, "Yes."
DISCUSSION
I.
Effect of Failure to Provide Adequate Record
Shlegel failed to include Lopez's request for a restraining order and any supporting documentation in the record. Shlegel also neglected to request a record of the oral proceedings at the initial hearing on Lopez's restraining order request, at which both parties testified. This hearing was not transcribed, so a reporter's transcript was not available, and Shlegel did not request a settled or agreed statement of proceedings. (Cal. Rules of Court, rule 8.120(b).) As a result, we have a limited, one-sided record of the trial court proceedings. "[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifie[d] reversal of judgment." (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson).) " 'This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.] 'In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court. "[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented." ' " (Id. at p. 609; see also R.D. v. P.M. (2011) 202 Cal.App.4th 181, 186, fn. 5 (R.D.) [presuming initial restraining order was fully supported by the evidence and trial court found petitioner's allegations to be true, in the absence of an adequate record on appeal].)
It is appellant's burden to provide a record of oral proceedings if she "intends to raise any issue that requires consideration of the oral proceedings in the superior court . . . ." (Cal. Rules of Court, rule 8.120(b).) An appellant who fails to provide such a record is precluded from "raising any evidentiary issues on appeal." (Hodges v. Mark (1996) 49 Cal.App.4th 651, 657.) "Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error." (In re Estate of Fain (1999) 75 Cal.App.4th 973, 992 (Estate of Fain).)
With these principles in mind, we proceed to consider Shlegel's contentions on appeal.
II.
Civil Harassment Restraining Order
"Section 527.6 was enacted 'to protect the individual's right to pursue safety, happiness and privacy as guaranteed by the California Constitution.' [Citations.] It does so by providing expedited injunctive relief to victims of harassment." (Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1412.) If the requisite elements of unlawful harassment are established "by clear and convincing evidence," then "an order shall issue prohibiting the harassment." (§ 527.6, subd. (i).) "The statute does not require the court to make a specific finding on the record that harassment exists, nor does it require specific findings of the statutory elements of harassment as defined in subdivision (b)." (Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1112 (Ensworth).) The granting of the injunction itself necessarily implies that the trial court found all the necessary elements of unlawful harassment. (Ibid.)
"Harassment" is 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." (§ 527.6, subd. (b)(3).) "Unlawful violence" is defined as "any assault or battery, or stalking . . . ." (§ 527.6, subd. (b)(7).) A "[c]redible threat of violence" is "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).) "Course of conduct" is "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose . . . ." (§ 527.6, subd. (b)(1).) 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 petitioner." (§ 527.6, subd. (b)(3).)
"We review issuance of a protective order for abuse of discretion, and the factual findings necessary to support the protective order are reviewed for substantial evidence." (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226 (Parisi).) "We resolve all conflicts in the evidence in favor of . . . the prevailing party, and indulge all legitimate and reasonable inferences in favor of upholding the trial court's findings. [Citation.] Declarations favoring the prevailing party's contentions are deemed to establish the facts stated in the declarations, as well as all facts which may reasonably be inferred from the declarations; if there is a substantial conflict in the facts included in the competing declarations, the trial court's determination of the controverted facts will not be disturbed on appeal." (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137-1138.) "[W]hether the facts, when construed most favorably in [Lopez's] favor, are legally sufficient to constitute civil harassment under section 527.6, and whether the restraining order passes constitutional muster, are questions of law subject to de novo review." (R.D., supra, 202 Cal.App.4th at p. 188.)
Having reviewed the record on appeal, we conclude Shlegel has not established she is entitled to relief. The trial court took testimony and evidence at the hearing and thereafter imposed a restraining order against Shlegel, in favor of Lopez. We can infer from this order that the trial court, in weighing the evidence presented at the hearing, determined that Lopez's account of events was more credible than Shlegel's. We must defer to the trial court's determinations of credibility. (Santa Clara County Correctional Peace Officers' Assn., Inc. v. County of Santa Clara (2014) 224 Cal.App.4th 1016, 1027; People v. Jackson (2014) 58 Cal.4th 724, 749 (Jackson) ["[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends."].) We can further infer that "the trial court found that [Shlegel] knowingly and willfully engaged in a course of conduct that seriously alarmed, annoyed or harassed [Lopez], and that [Lopez] actually suffered substantial emotional distress." (Ensworth, supra, 224 Cal.App.3d at p. 1112.)
Given the limited, one-sided record Shlegel has provided, we must presume the evidence Lopez submitted supports the trial court's findings. (Jameson, supra, 5 Cal.5th at p. 609 [" ' "[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented." ' "]; Ensworth, supra, 224 Cal.App.3d at p. 1112.) In addition, even the limited record available provides ample evidence to support the restraining order. The record shows that Shlegel purposefully directed her security camera to face the neighbors' backyard, posted threatening and accusatory notes, cursed and yelled at Lopez and her family, telling them to "go back to Mexico," and threatened to kill them. This behavior constitutes a course of conduct that "would cause a reasonable person to suffer substantial emotional distress," and clearly caused Lopez substantial distress, prompting her to seek the restraining order. (§ 527.6, subd. (b)(3).) We thus find that substantial evidence supports the trial court's implied finding that Shlegel unlawfully harassed Lopez.
The record also supports a finding that the restraining order was warranted due to Shlegel's credible threat of violence. (§ 527.6, subd. (b)(2).) Shlegel denied threatening Lopez with violence and stating, "I'll kill you." But on appeal we presume the trial court credited Lopez's testimony that Shlegel made a credible threat of violence (Jameson, supra, 5 Cal.5th at pp. 608-609), and we do not reweigh these credibility determinations (Parisi, supra, 5 Cal.App.5th at p. 1229). Moreover, it was not unreasonable for the trial court to make an implied finding that such a statement "would place a reasonable person in fear for [his or her] safety or the safety of [his or her] immediate family" (§ 527.6, subd. (b)(2)), particularly given Shlegel's verbal insults and increasingly antagonistic behavior toward Lopez and her family.
Shlegel claims she was not given a fair and meaningful opportunity to be heard at the initial hearing on the restraining order because the trial court did not allow any oral testimony, in violation of her due process rights. Even without a transcript of the initial hearing, however, the record clearly establishes that this claim lacks merit. The minute order reflects that both parties were sworn to testify on their own behalf, and, at the second hearing, Shlegel admitted she had proffered testimony at the first hearing. The record demonstrates that Shlegel had the opportunity to submit documents and declarations in her defense; she appeared at a hearing and testified on the merits; and the trial court determined the restraining order was warranted after considering all of the evidence. In short, the proper procedures were followed. (See Kaiser Foundation Hospitals v. Wilson (2011) 201 Cal.App.4th 550, 557 ["[A] proceeding for an injunction under section 527.6 . . . need not proceed as a 'full-fledged evidentiary hearing with oral testimony from all sides.' [Citation.] Rather, the hearing may be based on affidavits or declarations . . . ."].) We therefore reject Shlegel's claim that the trial court deprived her of the right to present evidence and defend herself.
We further reject Shlegel's claim that the restraining order was unsupported by "proof." Lopez's testimony at the initial hearing, plus any declarations and exhibits submitted in support of her request for a restraining order, constitute evidence. (Evid. Code, § 140.) And, on this record, we presume that the unreported testimony and documents missing from the record would demonstrate the absence of error. (Estate of Fain, supra, 75 Cal.App.4th at p. 992.) We similarly reject Shlegel's complaint that it was "just [Lopez's] word against [hers]." It is the trial court's duty to determine witnesses' credibility and the truth or falsity of the facts upon which a determination depends, and we defer to the determinations made by the trial court. (Jackson, supra, 58 Cal.4th at p. 749.) Pointing out that the trial court credited Lopez's account over Shlegel's does not establish the court erred in issuing the restraining order.
Shlegel characterizes the March incident as a solitary event, and claims it is insufficient to establish a course of conduct sufficient to constitute harassment. (§ 527.6, subd. (b)(1); see Russell v. Douvan (2003) 112 Cal.App.4th 399, 402-404 [an injunction restraining future conduct under section 527.6 is authorized when it appears that harassment is likely to recur in the future, but "[t]here may well be cases in which the circumstances surrounding a single act of violence may support a conclusion that future harm is highly probable"].) Shlegel claims she removed the offending leaflets on the night of the incident, she has been apologetic since then, and no further incidents have arisen. But Shlegel acknowledged that, over the years, the neighbors "have had numerous negative encounters." She admitted rotating the security cameras to point at her neighbors' property after the BB incident—which purportedly occurred during the summer of 2018, and which Shlegel learned about during the fall—long before the ultimate incidents in March. Shlegel displayed a course of conduct with a pattern of increasing severity, starting with the cameras, escalating with the notes, and culminating in the ultimate incident during which Shlegel made offensive statements and threatened violence. Moreover, we note that the incident during which Shlegel verbally threatened Lopez occurred after police had intervened regarding the notes. We conclude this demonstrates "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose . . . ." (§ 527.6, subd. (b)(1).)
Shlegel further claims the trial court applied the wrong standard and wrongly issued an injunction as punishment for past conduct, rather than in response to the reasonable probability that the conduct will continue. However, we find that the evidence supports the trial court's implied finding that the harassment is likely to recur in the future, justifying the restraining order. (Harris v. Stampolis (2016) 248 Cal.App.4th 484, 499.) "Absent indication to the contrary, we must presume that the trial court followed the applicable law and understood that it was required to find that future harm was reasonably probable. [Citations.] Given that it issued an injunction, we may infer that the trial court impliedly found that it was reasonably probable that future harassment would occur." (Id. at pp. 500-501.) Indeed, Shlegel acknowledged the neighbors' "numerous negative encounters" over the years, and, as previously noted, Shlegel displayed a course of conduct with a pattern of increasing severity, even after the intervention of law enforcement.
Finally, Shlegel contends the restraining order violates her right to free speech under the First Amendment. (U.S. Const., 1st Amend.) Specifically, Shlegel claims that, when she posted leaflets about her dog, she was communicating "in a public forum" regarding an issue of "public interest" and "public concern" to neighbors who are mostly "pet owners and dog lovers." As previously noted, we review this claim under a de novo standard of review. (Parisi, supra, 5 Cal.App.5th at p. 1227.) " ' "[F]acts that are germane to" the First Amendment analysis "must be sorted out and reviewed de novo, independently of any previous determinations by the trier of fact." [Citation.] And "the reviewing court must ' "examine for [itself] the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment . . . protect." ' " ' " (Id. at p. 1226.) Applying these principles, we conclude Shlegel's First Amendment rights were not implicated here. "In California, speech that constitutes 'harassment' within the meaning of section 527.6 is not constitutionally protected, and the victim of the harassment may obtain injunctive relief." (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1250.) Violence and threats of violence are not protected by the First Amendment. (Ibid.) Even on the limited record available, it is clear that the restraining order was not imposed in response to Shlegel's statements informing her neighborhood about her dog, or any other constitutionally protected activity. Rather, the restraining order was issued in response to Shlegel's threats of violence and harassment toward Lopez and her family. The statements are not "of a character which the principles of the First Amendment . . . protect." (Parisi, at p. 1226.) Moreover, the restraining order merely directs Shlegel to lower the security camera below the fence line and prohibits Shlegel from coming within five yards from Lopez's residence, and 100 yards from Lopez and her family at all other locations. These are content-neutral restrictions that do not restrict Shlegel from engaging in any form of protected activity. (See R.D., supra, 202 Cal.App.4th at p. 191 [rejecting appellant's claim restraining order violated her constitutional right to free speech, where order was content-neutral restriction on appellant's speech, and only restrained appellant from coming within close proximity to protected persons].)
III.
Request to Modify or Terminate Restraining Order
Section 533 sets forth the standards for a trial court to apply when a party seeks to terminate or modify a civil harassment restraining order, which is a type of injunction. (See Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1503-1504 (Loeffler); § 525 [defining "injunction" as an "order requiring a person to refrain from a particular act"].) Pursuant to section 533, a trial court may, on notice, modify or dissolve the restraining order on a showing that: (a) there has been a material change in the facts on which the injunction or restraining order was granted; (b) the law on which the injunction or restraining order was based has changed; or (c) modification would serve the ends of justice. (§ 533.) "[T]he burden is on the restrained party to show by a preponderance of the evidence that one of the circumstances set forth in Code of Civil Procedure section 533 is present and justifies a termination of the restraining order." (Loeffler, at p. 1504.) We review a trial court's order denying a motion to modify or terminate a restraining order for an abuse of discretion. (Ibid.)
The court here properly concluded Shlegel did not establish any factor that would justify modification or dissolution of the restraining order. To the contrary, Shlegel admitted to the court that she simply disagreed with the order, and argued that Lopez had exaggerated or misled the prior judge who issued the restraining order. Shlegel's disagreement with the facts as found by the court imposing the order does not justify terminating the restraining order. (§ 533.)
At the modification hearing, Shlegel indicated she now had police reports reflecting prior incidents involving the neighbor. On appeal, she contends the court erred by refusing to consider her evidence on the ground that it was not newly discovered. None of the evidence Shlegel proffered was new. The trial court could reasonably conclude that the police reports were available at the time of the initial hearing. Shlegel simply did not have the reports in her possession and did not proffer them at the prior hearing. More importantly, Shlegel has not established that these police reports demonstrate a material change in facts sufficient to justify dissolution of the restraining order. (§ 533.) Because Shlegel failed to demonstrate any of the factors that would justify modification or termination of the restraining order, we conclude the court did not abuse its discretion when it denied her request. (Loeffler, supra, 174 Cal.App.4th at p. 1508 [concluding trial court did not abuse its discretion in denying restrained person's application to terminate a domestic violence restraining order when there was no material change in law or fact and the applicant did not establish that the ends of justice required termination].)
To the extent Shlegel's motion was one for reconsideration under section 1008, it fails for similar reasons. (See § 1008, subd. (b) [a motion for reconsideration may not be granted unless it is supported by "new or different facts, circumstances, or law"]; Crotty v. Trader (1996) 50 Cal.App.4th 765, 771 ["[S]ection 1008 gives the court no authority when deciding whether to grant a motion to reconsider to 'reevaluate' or 'reanalyze' facts and authority already presented in the earlier motion."].)
DISPOSITION
The orders are affirmed.
GUERRERO, J. WE CONCUR: McCONNELL, P. J. HUFFMAN, J.