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C.A. Reverses Denial of Restraining Order by LASC Judge Who Cut Hearing Short
Explanation Rejected That Offers of Proof Showed Testimony, If Believed, Would Not Have Justified Granting Petition
By a MetNews Staff Writer
The Court of Appeal for this district has held that a Los Angeles Superior Court judge abused his discretion in denying a petition for a civil restraining order without permitting cross-examination of the defendant and without hearing from the plaintiff’s witnesses, declaring that if such questioning had taken place, it is “reasonably probable” that a basis for relief would have been shown.
Judge David W. Swift explained at the May 22, 2021 hearing on Polly Koutroumbis’s petition for a restraining order pursuant to Code of Civil Procedure §527.6, after offers of proof had been presented, that the proposed testimony would fall short of meeting the high standard for such an order.
Koutroumbis contended in her March 19, 2021 petition that her next-door neighbor in Santa Monica, David Fickbohm, “intentionally threw lumber off the top of a fence separating our properties, striking and injuring me September 17, 2020.” However, Swift found:
“It’s certainly possible that he knocked into the fence and caused the wood to fall, but there’s no evidence of him intentionally throwing wood.”
The plaintiff, 72, also alleged that her neighbor repeatedly filmed her when she’s in her backyard and when she leaves her home. She accused him of spitting at her, making a “a deep guttural sound” directed at her, and “snorting like a pig” on several occasions at her adult daughter.
Swift’s Explanation
Swift explained from the bench:
“I don’t think that the filming issue, even if true, is enough for a restraining order. “The standards for a civil harassment restraining order are really quite high. It’s akin to a claim for intentional infliction of emotional distress. It is—it is a really high bar.
“And some of the cases on restraining orders—it takes some pretty—what I would consider pretty outrageous conduct and say that does not rise to the level necessary for a restraining order.
“So the fact that Mr. Fickbohm may or may not wear a GoPro camera on his head for hours and hours during the day looking into—which may at times look into petitioners yard.
“I don’t think I need to hear testimony on that because even if it’s true, at most that rises to being a bad neighbor, and I can’t issue a restraining order every time someone is a bad neighbor. It’s just—that’s not the purview of this court.
“The snorting sounds issue to me is the same thing, even if it’s true….”
Acknowledging that the plaintiff hadn’t rested, the judge pointed out:
“[W]e’ve given this, you know, over two hours of testimony, and that’s—I wish I could give more, but I—I have to consider the demands of the court in terms of other cases.”
Manella’s Opinion
Presiding Justice Nora M. Manella of Div. Four wrote the opinion reversing the order. It was filed Thursday and not certified for publication.
The opinion directs that a new hearing be conducted “in compliance with section 527.6, subdivision (i).” That provision says:
“At the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an order shall issue prohibiting the harassment.”
She noted that spitting at someone constitutes a battery. As such, if it occurred, it would support the issuance of a restraining order, Manella said.
The filming might also provide a foundation for such an order, she continued, observing:
“Although we cannot determine on this incomplete evidentiary record whether the additional evidence would have shown the filming amounted to nothing more than respondent ‘being a bad neighbor,’ that finding was premature absent consideration of the additional testimony proffered by appellant. We conclude the court abused its discretion in excluding relevant testimony concerning the extent and circumstances of respondent’s allegedly invasive filming of appellant.”
The presiding justice went on to say:
“In finding that appellant failed to present clear and convincing evidence of harassment, the court relied on its finding that respondent was credible, based in part on its consideration of the parties’ demeanor. In the absence of any cross-examination, however, the court’s opportunity to consider respondent’s demeanor and to evaluate his credibility was incomplete.”
She continued: “Moreover, the court’s opportunity to evaluate both respondent’s and appellant’s credibility was incomplete, as it excluded the proffered testimony of witnesses corroborating appellant’s allegations.
“On this record, we find it reasonably probable that had the court heard and considered all relevant testimony, it would have found clear and convincing evidence of harassment and issued a restraining order.”
The case is Koutroumbis v. Fickbohm, B316074.
Santa Monica attorney Bennett Kerns represented Koutroumbis. Fickbohm’s lawyers were Marc R. Jacobs, Reuben A. Ginsburg and Alexander R. Safyan of the Westwood firm of Michelman & Robinson, LP.
Copyright 2022, Metropolitan News Company