Filed 7/29/26 Lew v. Di Giacomo CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JAMES LEW, D086030
Appellant,
(Super. Ct. No.: 24HR010931C)
v.
LEONARDO ENRIQUE DI GIACOMO,
Respondent.
APPEAL from an order of the Superior Court of San Diego County,
Rebecca Zipp and Blair Soper, Judges. Affirmed.
James Lew, in pro. per., for Appellant.
No appearance for Respondent.
James Lew appeals the denial of his second of two applications for a
civil harassment restraining order (CHRO) against Leonardo Enrique Di
Giacomo, and of his motions for sanctions against Di Giacomo and Di
Giacomo’s counsel. He contends the trial court erred in denying his
application.1 Finding no error, we affirm.
I. BACKGROUND
This case arises in the context of a contentious relationship between Di
Giacomo and a woman who is his former girlfriend and the mother of his
child. The relationship ended in August 2023. The following month, the
former girlfriend learned she was pregnant. She and Di Giacomo argued
about her desire to give birth at home instead of at a hospital. And, in March
2024, the child was delivered by a midwife in the girlfriend’s apartment.
Until some time prior to the child’s birth, Di Giacomo had what appears
to have been a friendly relationship with the girlfriend’s neighbor, Lew:
“Oftentimes I would go . . . walking [my girlfriend’s] dog and [Mr. Lew] would
join . . . . [¶] The last two times that I saw him before my child was born, he
bought me a coffee, and the last time I bought him a coffee.”
But on the afternoon of the day the child was born, matters took a turn.
A. The Day of the Child’s Birth
In Di Giacomo’s telling:
“The day of the birth, I knocked on the door [to my former
girlfriend’s apartment]. . . . We had [had] good, friendly
communication the day before. . . . So I was bringing food
to her. [Her sister answered the door, and] her dog ran
out . . . almost . . . into the street. I tried to get the dog
while I’m holding [the] food. [¶] And [Mr. Lew] comes out
on the balcony, . . . he decides to be a vigilante, and he
starts cursing me out constantly. [¶] So I left. [Then] I
came back. I wanted to confront him because I didn’t know
1 Di Giacomo did not file a respondent’s brief. Thus we resolve this
appeal based on a review of the record, Lew’s opening brief, and oral
argument. (In re Marriage of Everard (2020) 47 Cal.App.5th 109, 111, fn. 1.)
Our review of the record has included 32 exhibits (lettered A through FF)
accompanying Lew’s motion to augment the record, which we grant.
2
where he was coming from, given that we had [had a]
friendly relationship before. . . . I didn’t know where all
this violence was coming from, so I wanted to confront him
and then I left.”
In Lew’s telling:
“DiGiacomo was harassing . . . [the] member[s] of an at-
home birthing team while the mother of his child . . . was in
labor. [The mother and her sister] are both neighbors and
friends of mine, from [whom] I’d been hearing the many
ways [in which Di Giacomo had been] harassing her over
her birth plan and threatening litigation after having been
an absent-if-not-antagonistic financial non-contributor
throughout her pregnancy.
“Sensing he was taking advantage of an all-female presence
and their non-confrontational disposition in light of the
situation, I called out to [the sister] and asked if he was
there bothering them. After getting nonverbal
confirmation . . . from [her] that he was antagonizing the
situation, . . . I shouted out at him that ‘nobody that lives
here wants your deadbeat loser-ass here, you’re
trespassing, get the f**k out of here’, the latter part
chanted repeatedly until he left out of embarrassment over
the attention being called to him out on the street.
“Minutes later, he returned and knocked at my door,
scoffing at me (in Spanish) for thinking I’m such a tough
guy and challenging me to come outside and get my ass
beat before trying to forcibly open my security door. When
his efforts at forced entry and to get a rise out of me failed,
he called me ‘marica’—a Spanish slur roughly translating
to ‘pussy’ and/or ‘faggot’ depending on context—and hit the
security door one more time as I closed the front door on
him.”
Three days later, in what he describes as an “attempt to make
amends,” Di Giacomo sent Lew a bouquet of flowers with a note saying:
“Jimmie. I Am Really Sorry! I Have Nothing Against You.” Thereafter, Di
3
Giacomo initiated paternity and child custody proceedings against the child’s
mother.
B. The Paternity and Child Custody Proceedings
The paternity and child custody proceedings resulted, in October 2024,
in a ruling acknowledging Di Giacomo as the child’s father and granting him
parenting time with the child. In remarks accompanying that ruling, the
family court commissioner expressed empathy for the “feelings of
helplessness . . . [and] frustration [of] both parties,” she reproached Di
Giacomo for having gone “a little bit too far by showing up uninvited” to the
former girlfriend’s apartment on the day of the child’s birth after having been
told his presence was not wanted, she said it was important for “the tension
to be brought down,” and, toward this end, she urged the mother to try to
help moderate the behavior of “the support people that you have.”
C. The Two Rounds of Cross-Applications for CHROs Between
Lew and Di Giacomo
One of the people endeavoring to be supportive to the mother was Lew.
During the approximately six-month period that began on the date of the
birth and that culminated in the family court hearing discussed ante,
tensions between him and Di Giacomo intensified to the point that the two
men filed not one but two rounds of cross-applications for CHROs against one
another.
1. Round One (Case No. 24HR001463C), July 2024 – August
2024
The first round of CHRO applications was initiated by Di Giacomo. In
July 2024, he filed an application in which he alleged: that, on the day of the
birth, Lew had “curse[d] me out and stated that he would beat me up”; and
that, “on an ongoing basis” thereafter, Lew and Lew’s roommate would
“follow me around the neighborhood, cursing me out and saying they would
4
give me a beating.”2 The following month, Lew filed a cross-application for a
CHRO against Di Giacomo.3 And, following an evidentiary hearing that
same month, the trial court (Judge Zipp) denied both applications without
prejudice.
2. Round Two (Case No. 24HR010931C), October 2024 –
January 2025
The second round of CHRO applications was initiated by Lew. It
commenced with the September 13, 2024, filing by Lew of the application
that launched the present case.
a. Lew’s September 2024 Application for a CHRO
Against Di Giacomo
In a pair of declarations he filed as part of his application in the
present case, Lew stated: that, on two different days, Di Giacomo had
taunted him by mockingly blowing kisses in his direction; that, on occasions
when the two had found themselves walking towards one another in the
neighborhood in which they both resided, Di Giacomo had not altered course;
and that, on one such occasion, Di Giacomo had petted Lew’s emotional
support dog.
According to one of these declarations, the first “smug kissing taunt[]”
occurred during August 2024 outside the courtroom in which the evidentiary
hearing for the first round of CHRO applications had just occurred, and the
second such incident occurred about three weeks later:
“While returning home from a walk up the street, I heard
the sound of two kisses being blown as I passed Good
Omen, a local coffee shop. I initially assumed them to be
2 On the same day that he filed his first application for a CHRO against
Lew, Di Giacomo also filed such an application against Lew’s roommate.
3 Lew’s August 2024 application for a CHRO against Di Giacomo is not
included in the record on appeal in the present case.
5
between someone and their dog outside my peripheral
vision and kept walking. About 20 paces later, the audial
memory of hearing that particular sound while leaving the
courtroom on August 14th resurfaced. Reluctantly, I
turned around to find [Di Giacomo] standing behind me,
smugly staring down at me. Since then, there has been an
increase of crossing paths resulting from his deliberate
choice to take walking routes that encompass the
immediate vicinity of our apartment complex.”
Lew also stated in this declaration that he had experienced fear and suffered
emotional distress as a result of Di Giacomo’s conduct toward him.
According to the second of the two declarations that Lew filed with his
application for a CHRO in the present case:
“[T]here have been repeated occurrences in which our paths
cross within a 600 ft radius of my place of residence. Upon
seeing him, I’ll begin recording video, in order [to] deter any
harassment and capture it should it occur.
“On at least two occasions, he has not only maintained
course in my direction and walked within my immediate
vicinity; on one of those, he made what he knew would be
unwelcome contact and pet[ted] my dog in passing a few
feet behind me, as happened to be recorded on video.”
On the day that Lew filed the CHRO application that included these
two declarations, a temporary restraining order (TRO) issued.
Then, three days later, Lew filed a third declaration in support of his
CHRO application in the present case. In this declaration Lew said that, on
the previous evening, he had been outside Di Giacomo’s apartment
attempting to obtain a declaration from Di Giacomo’s next door neighbor,
when Di Giacomo arrived on the scene and addressed him in a hostile
manner:
“After a double-take and realizing that it was me talking to
[the neighbor], Mr. Di Giacomo circled back and began
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walking up the steps to approach us, cell phone in hand to
record the interaction . . . .
As Mr. Di Giacomo approached . . . , he immediately began
demanding to know what we were talking about. I
responded to him that it was none of his business, and
requested that he not approach me nor speak to me. He
kept trying to press me and [the neighbor] for an
explanation, and grew frustrated at my nonplussed
dismissal and [the neighbor]’s reluctance to engage. He
began walking away, turning after 3 steps to say to [the
neighbor] ‘we may have to ask you to come to court’ as he
resumed walking down the steps and back towards his car.
I apologized to [the neighbor] that Mr. Di Giacomo was
threatening him and trying to make him regret his
willingness to affirm the truth and fear getting dragged
further into the matter, thanked him for his time and
contribution towards my case, then descended the steps
and began walking in the [direction] opposite to Mr. Di
Giacomo and his vehicle to leave the premises, having
accomplished my goal of getting at least one signature in
the building.
I then noticed Mr. Di Giacomo approaching me yet again,
and [so I] in turn stopped walking and began a new video
recording of him. Mr. Di Giacomo said to me: ‘you continue
to harass me, and I’m calling the police’ as he went back up
the stairs to his apartment. I simply replied that I was
there lawfully on legal business, and to please go ahead and
call the authorities. Once it appeared that Mr. Di Giacomo
was going to enter his residence and bring the unwanted
interaction to its conclusion, I hit the button to stop
recording right as he started [addressing me] again [as he
was] descending the staircase. I calmly responded ‘YOU
talked to me. I did not approach you, and I’ve already
asked you to stop talking to me.’ At this point, Mr. Di
Giacomo took a sharp turn and walked back to knock on
[the neighbor]’s front door. I called out after Mr. Di
Giacomo to ‘leave him alone.’ ”
7
b. Di Giacomo’s October 2024 Response to Lew’s
September 2024 Application for a CHRO
On October 3, 2024, Di Giacomo filed his response to Lew’s second-
round application for a CHRO. In a declaration filed with this response, Di
Giacomo declared:
“[S]ince I filed a paternity action and motion for custody[/]
visitation against the mother of my newborn [child] . . . ,
James Lew has held a personal vendetta against me.
“[¶ . . . ¶]
“I would simply like to be left alone by Mr. Lew . . . , and I
can assure this Court that I will not be speaking or
interacting with Mr. Lew . . . for any reason. Although we
do live in the same neighborhood in University Heights, it
is quite easy for us to avoid each other, in every respect, so
that we may live our separate lives peacefully.
“Contrary to what Mr. Lew has alleged, I have never blown
kisses toward him—either in the courthouse or anywhere
else for that matter. This is false.
“[¶ . . . ¶]
“I understand Mr. Lew has a strong, personal grudge
against me because I have chosen to fight for custody of my
six-month old [child], but there is simply no further need
for these restraining orders or the frivolous claims made
against me.”
c. The October and December 2024 Hearings
On October 7, 2024, four days after Di Giacomo had filed his response,
an initial hearing occurred before Judge Zipp. The minute order from this
hearing says:
“An unreported chambers conference is held. [¶] Court
notes parties agree to future status conference at the date
and time below. This matter to trail pending child custody
case. [¶] Per Court the temporary restraining order is
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dissolved. [¶] Status hearing is continued to 12/9/24 at
1:30 PM”
The minute order from the December 9 hearing says:
“Counsel updates the Court regarding pending family case.
[¶] Court notes petitioner request to proceed to hearing on
this matter. [¶] Respondent [Di Giacoma] request for
dismissal is denied at this time. [¶] Hearing on
restraining order is continued on request of petitioner
[Lew] to 1-29-25 at 1:30 PM.”
d. The First of Lew’s Two Motions for Sanctions and
Attorneys’ Fees
On January 7, 2025, Lew filed in the present case a motion for
sanctions and attorneys’ fees against Di Giacomo targeting what he described
as Di Giacomo’s “frivolous and retaliatory filing of [CHRO] petitions” against
Lew in the previous (round one) case against Lew and in a related case
against Lew’s roommate. In his motion papers, Lew asserted that Di
Giacomo had filed his first-round application for a CHRO against Lew: (1) to
retaliate for Lew having intervened on the day of Di Giacomo’s child’s birth;
(2) to “prejudice the [f]amily [c]ourt against [Lew]’s anticipated testimony” in
the family court matter; (3) to weaken the mother’s support system; (4) to
impeach the mother’s fitness as a parent “on the basis of prospectively
allowing her child near [Lew] when active restraining orders are in place”; (5)
to harass Lew; and (6) to cause delay.
e. Di Giacomo’s January 2025 Cross-Application for a
CHRO and His Further Response to Lew’s September
2024 Application for a CHRO
On January 10, 2025, Di Giacomo filed a cross-application for a CHRO,
and a further response to Lew’s September 13, 2024, application. In these
filings, Di Giacomo denied Lew’s allegations and asserted that Lew had been
tracking him, videotaping him, recording his movements, threatening him,
9
making obscene gestures at him, and cursing at him in public. He further
declared that:
“In addition to all of this Mr. Lew . . . declares that his
intent has always been to create leverage and give weight
to [the mother of my child] on my petition . . . for shared
legal custody of [the child].”
In support of this latter statement, Di Giacomo quoted from a
declaration that Lew had filed in support of his first-round application for a
CHRO against Di Giacomo. In that declaration, Lew had written:
“We as a residential community have silently suffered the
disruption of peace created by the defendant [Di Giacomo]
in his engagements with our neighbor and friend . . . (the
mother of his child). Sensitive to the fact that she would
likely end up in a legal custody battle and wanting to
ensure she has the strongest possible standing when she
does, we stay vigilant should she require our emergency
intervention . . . .”
Di Giacomo also cited, in his declarations, instances in which he said
Lew had tracked his movements in coordination with others in the
neighborhood, blocked his path, falsely accused him of having stolen a
photograph of Lew’s dog from a coffee shop that both men frequented, and
“fabricate[d] [other] facts.” In addition, Di Giacomo said that he had
experienced fear and suffered extreme stress as a result of Lew’s conduct
toward him.
f. Lew’s Response to Di Giacomo’s Application for a
CHRO
On January 17, 2025, Lew filed a response to Di Giacomo’s cross-
application for a CHRO in the present case. In this response, Lew accused Di
Giacomo of making various misrepresentation, portraying him “as a crazed
mentally unstable lunatic,” portraying his dog as “vicious,” making
10
“intentional provocative contact with” the dog, and stealing a photograph of
the dog from a coffee shop “for reasons unknown but received as a threat.”
g. The Second of Lew’s Motions for Sanctions and
Attorneys’ Fees
On January 28, 2025, while the motion for sanctions and attorneys’ fees
he had filed on January 7 was still pending, Lew filed a second motion for
sanctions and attorneys’ fees. Whereas the January 7 motion had targeted
conduct by Di Giacomo in the prior case (see ante), the January 28 motion
targeted conduct of Di Giacomo’s attorney in the present case. In the January
28 motion, Lew asserted that this same attorney was also Di Giacomo’s
counsel in the paternity and custody proceedings and thus was familiar with
both cases, but that he nonetheless had misrepresented facts in Di Giacomo’s
October 3 response to Lew’s CHRO application in the present case and that
he had done so in order to harass Lew, mislead the court, and prolong the
litigation.
h. The Evidentiary Hearing and the Trial Court’s
Ruling
An evidentiary hearing occurred in the present case on January 29,
2025. At this hearing, the trial court heard live testimony from two
witnesses—Lew and Giacomo—that was generally in keeping with their
declarations. At the conclusion of the January hearing, the trial court (Judge
Soper) observed that the applicable standard of proof was clear and
convincing evidence, and it emphasized that this was “a fairly high
standard.” Then, applying this standard, it denied each of the two second
round CHRO applications with prejudice. So doing, the court said:
“The court has heard testimony of only a handful of actual
face-to-face interactions in this case. And frankly, the
one . . . where Mr. [Di] Giacomo pet[ted] Mr. Lew’s dog
seemed to be a pleasant interaction. Mr. [Di] Giacomo did
send flowers with a card apologizing to Mr. Lew. I think
11
this is a case where there has been some severe
miscommunication on both sides. And I think both parties
need to take a step back and recognize that they’re both
human beings and maybe they made some mistakes in the
past, but this is [a] time to move forward. In light of the
fact that I do not believe either side has met their burden,
the court is going to deny the permanent restraining order
on both sides . . . . You generally live fairly close to each
other. If you see each other, don’t talk to each other, cross
the street, try not to antagonize each other. [T]o file a
restraining order in cases like this is not welcome. It just
seems like it’s some bad interactions, it does not go to the
level of stalking, it does not go to the level of harassment on
either side. That is the court’s order.”
In this same order, the court also denied Lew’s motions for attorneys’ fees
and sanctions.
Lew timely appealed the January 29 order.
II. DISCUSSION
In his brief on appeal, Lew argues: (1) that, at the October 7 hearing,
the trial court “abused its discretion and violated due process by prejudging
the case and refusing to hear argument”; (2) that substantial evidence
supported the issuance of a permanent restraining order; (3) that, at the
January 29 hearing, the court “committed reversible error by applying the
‘clear and convincing’ standard to the prediction of future harm”; and (4) that
the court abused its discretion in denying his motions for sanctions. In
examining these arguments, we review the trial court’s findings of fact for
substantial evidence, its conclusions of law de novo, and its determinations
based on the findings of fact and conclusions of law for an abuse of discretion.
(Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226; Salazar v. Eastin
(1995) 9 Cal.4th 836, 849–850.)
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A. Lew’s Contention that the Trial Court “Abused Its Discretion
and Violated Due Process by Prejudging the Case and Refusing
to Hear Argument”
As noted ante, Lew contends that, at the October 7 hearing, the trial
court “abused its discretion and violated due process by prejudging the case
and refusing to hear argument.” This contention is premised on an inference
that the decisions the court made at this hearing—to dissolve the TRO and
continue the matter to a future date—cannot be attributable to any cause
other than the court having jumped to a premature conclusion that no
restraining order was warranted. But this inference is not supported by the
record.
That record consists exclusively of the minute order quoted ante from
the October 7, 2024. That order indicates nothing more than that:
(1) following a chambers conference, the court dissolved the TRO and
continued the matter to a date and time to which the parties agreed; and
(2) it did so for the purpose of convening a status conference following
anticipated developments in the paternity and custody proceedings. The
record does not indicate that the court prejudged the merits.
The record also does not indicate that any party objected to dissolution
of the TRO. Hence Lew’s contention that the court “prejudge[ed] the case and
refus[ed] to hear argument” is waived. (People v. Holmes, McClain and
Newborn (2022) 12 Cal.5th 719, 772 [“The general rule is that a failure to
object in the trial court waives the right to assert error on appeal.”]; see also
Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter
Group 2026) ¶ 4:43 “[if the particular form of record appears to show any
need for speculation or inference in determining whether error occurred, the
record is inadequate”]; Foust v. San Jose Construction Co., Inc. (2011)
198 Cal.App.4th 181, 186–187 [observing that appellant’s “[f]ailure to provide
13
an adequate record on an issue” is “fatal” inasmuch as it “requires that the
issue be resolved against [him],” and cataloging “numerous situations” in
which “appellate courts have refused to reach the merits of an appellant’s
claims because no reporter’s transcript of a pertinent proceeding or a suitable
substitute was provided”.])
B. Lew’s Contention that Substantial Evidence Supported the
Issuance of a Permanent Restraining Order
Lew contends “[s]ubstantial evidence supported the issuance of a
restraining order to prevent future harm.” To examine this contention, we
begin by describing the statutory provision that governs CHROs.
1. Code of Civil Procedure, Section 527.6
The statutory provision that governs CHROs is section 527.6 of the
Code of Civil Procedure.4 Pursuant to section 527.6, “[a] person who has
suffered harassment as defined in subdivision (b)” may seek injunctive relief.
(§ 527.6, subd. (a)(1).) Subdivision (b) 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” (id., (b)(3)); and
it defines a “ ‘[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, including following or stalking an individual, making harassing
telephone calls to an individual, or sending harassing correspondence to an
individual by any means.”5 (Id., subd. (b)(1)). Section (b) further specifies
that “[t]he course of conduct must be that which would cause a reasonable
4 All unspecified statutory references are to the Code of Civil Procedure.
5 “Constitutionally protected activity is not included within the meaning
of ‘course of conduct.’ ” (§ 527.6, subd. (b)(1).)
14
person to suffer substantial emotional distress, and must actually cause
substantial emotional distress to the petitioner.” (Id., subd. (b)(3).) In
addition, inasmuch as “an injunction serves to prevent future injury and
[thus] is not applicable to wrongs that have been completed” (Russell v.
Douvan (2003) 112 Cal.App.4th 399, 402 (Russell)), a party who seeks a
CHRO also must establish a probability that wrongful acts are likely to recur.
(Id., at pp. 401–403.)
A court from which a CHRO is sought may enter a TRO to provide
short-term relief (§ 527.6, subds. (d) & (f)) or, after a hearing, a restraining
order of longer duration (sometimes referred to as a permanent restraining
order). (Id., subds. (g), (i), & (j).) At such a hearing, “the judge shall receive
any testimony that is relevant and may make an independent inquiry.” (Id.,
subd. (i).) “If the judge finds by clear and convincing evidence that unlawful
harassment exists, an order shall issue prohibiting the harassment.” (Ibid.)
2. Analysis of Lew’s Substantial Evidence Argument
In support of his contention that “[s]ubstantial evidence supported the
issuance of a restraining order to prevent future harm,” Lew argues that
“denial of [his application for a CHRO] was error because the record contains
substantial evidence satisfying all elements of Code Civ. Proc., § 527.6.” But
this argument turns the substantial evidence standard on its head.
Under the substantial evidence standard, “ ‘ “ ‘we are bound by the
established rules of appellate review that all factual matters will be viewed
most favorably to the prevailing party [citations] and in support of the
judgment’ ” ’ ”—which is to say “ ‘ “ ‘ “the appellate court ordinarily looks only
at the evidence supporting the successful party, and disregards the contrary
showing,” ’ ” ’ ” resolving all conflicts in favor of the respondent. (Sonic
Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196
15
Cal.App.4th 456, 465 (Sonic), quoting In re I.W. (2009) 180 Cal.App.4th 1517,
1527.)
More often than not, the substantial evidence standard “ ‘is . . .
implicated when a defendant contends that the plaintiff succeeded at trial in
spite of insufficient evidence.’ ” (Sonic, supra, 196 Cal.App.4th at p. 465,
quoting In re I.W., 180 Cal.App.4th at p. 1528, italics added.) But in a case
such as the one before us now, in which “ ‘the trier of fact has expressly or
implicitly concluded that the party with the burden of proof did not carry the
burden’ ” and “ ‘the issue on appeal turns on a failure of proof at trial,’ ” “ ‘it is
misleading to characterize the failure-of-proof issue as whether substantial
evidence supports the judgment.’ ” (Dreyer’s Grand Ice Cream, Inc. v. County
of Kern (2013) 218 Cal.App.4th 828, 838 (Dreyer’s) [italics added], quoting In
re I.W., at p. 1528; accord, Sonic, 196 Cal.App.4th at p. 465.)
Here, “ ‘the question for a reviewing court becomes whether the
evidence compels a finding in favor of the appellant as a matter of law.”
(Dreyer’s, supra, 218 Cal.App.4th at p. 838, quoting In re I.W., 180
Cal.App.4th at p.1528.) “ ‘Specifically, the question becomes whether the
appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of
such a character and weight as to leave no room for a judicial determination
that it was insufficient to support a finding.” [Citation.]’ ” (Dreyer’s, at
p. 838, quoting In re I.W., at p. 1528; accord, Sonic, 196 Cal.App.4th at
p. 466.) “The appellate court cannot substitute its factual determinations for
those of the trial court; it must view all factual matters most favorably to the
prevailing party and in support of the judgment.” (Dreyer’s, at p. 838.)
“ ‘ “All conflicts, therefore, must be resolved in favor of the respondent.” ’ ”
(Ibid., quoting In re I.W., at p. 1528.)
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Here, the evidence adduced by Lew was far from uncontradicted, and
far from unimpeached. Lew’s evidence was contradicted, for example, insofar
as Di Giacomo testified: that he had never blown kisses toward Lew; that,
subsequent to March 2024, he had “never interacted . . . aggressively” with
Lew”; and that, whenever the two men encountered one another in the
neighborhood, Di Giacomo would “pass [Lew] passively.”
Lew’s evidence was impeached by the existence of other evidence that
supported inferences cutting against Lew’s claims. These include, for
example, an inference that, in seeking a CHRO against Di Giacomo, Lew
might have been motivated by a desire to stigmatize Di Giacomo in
furtherance of his intention to help “ensure” that, “in [the] legal custody
battle,” the mother of Di Giacomo’s child would have “the strongest possible
standing.” (See ante.) Yet other inferences that might be drawn from the
evidence also undercut Lew’s case—including, for example, an inference that,
in petting Lew’s dog, Di Giacomo was motivated by a sentiment other than
animus toward Lew; and an inference that any kissing sounds or motions Di
Giacomo might have made in Lew’s presence6 were directed affectionately
toward Lew’s dog rather than with hostility toward Lew.7
In addition, in concluding that Lew had not met his burden, the trial
court could reasonably have concluded, based on the evidence presented, that
Lew had not succeeded in establishing—by the high standard of clear and
convincing evidence—that the conduct in which Di Giacomo reportedly had
engaged was not such as “would cause a reasonable person to suffer
substantial emotional distress” (§ 527.6, subd. (b)(3)), did not “actually cause
6 As noted ante, Di Giacomo denies having blown kisses toward Lew.
7 The potential inferences we identify in this paragraph are just that
(i.e., inferences). We make no findings of fact.
17
[him] substantial emotional distress” (ibid.), was unlikely to recur (Russell,
supra, 112 Cal.App.4th at pp. 401–403), or did not satisfy some other element
among those required for a permanent CHRO to issue pursuant to section
527.6.
C. Lew’s Contention that the Trial Court “Committed Reversible
Error by Applying the ‘Clear and Convincing’ Standard to the
Prediction Of Future Harm”
Lew contends the trial court “committed reversible error by applying
the ‘clear and convincing’ standard to the prediction of future harm.” In
support of this contention he asserts: (1) that the “clear and convincing”
standard of proof applies only to “evidence that unlawful harassment exists”
(§ 527.6, subd. (i)) and not to evidence that such harassment is likely to recur;
and (2) that the court nonetheless applied that high standard to determine
that Di Giacomo was not likely to harass him in the future. In Lew’s own
words:
“Under Code Civ. Proc., § 527.6, a petitioner must establish
past harassment by clear and convincing evidence and
show only a reasonable probability of future harm. ¶ . . . ¶]
[Yet,] [d]uring the ruling on January 29, 2025, the trial
court explicitly . . . stated:
“ ‘I have to find . . . great or irreparable harm
would result . . . because of the reasonable
probability that unlawful violence will occur in the
future, and I have to make that finding by clear
and convincing evidence.’ ”
We see four problems with this contention.
First, the quotation on which the contention is premised is fabricated.
Nowhere in the transcript of the January 29 evidentiary hearing, in the order
that resulted from that hearing, or in any other part of the record before us
did the trial court state that it was applying the “clear and convincing”
18
burden of proof to evidence bearing on the probability that either party would
harass the other in the future.
Second, we find no indication in the record that the trial court made
any finding regarding the likelihood that harassment would continue into the
future.
Third, the trial court having found that Lew failed to carry his burden
of establishing by clear and convincing evidence that harassment existed,
there was no basis and thus no need for it to consider whether Lew had
succeeded in establishing—by any burden of proof—a likelihood that (non-
existent) harassment would recur.
Fourth, Lew’s contention that the trial court applied an incorrect
burden of proof is at odds with the text of Code of Civil Procedure and
applicable case law. As discussed ante, section 527.6 uses the present tense
to state that issuance of a CHRO is required “[i]f the judge finds by clear and
convincing evidence that unlawful harassment exists.” (§ 527.6, subd. (i),
italics added.) But unlawful harassment cannot reasonably be said to exist in
the present if the evidence reveals only past harassment and no sufficient
threat of recurrence. (Russell, supra, 112 Cal.App.4th at pp. 402–403 [“An
injunction is authorized only when it appears that wrongful acts are likely to
recur. [¶ . . . ¶] [U]nder subdivision (d) [of section 527.6,] a court cannot
issue an injunction unless it finds by clear and convincing evidence that
‘unlawful harassment exists” (§ 527.6, subd. (d), italics added), not that it
existed in the past.”].) Thus it follows that evidence demonstrating a likely
recurrence of harassment is part of the showing necessary under section
527.6 to establish, by clear and convincing evidence, that “unlawful
harassment exists.”
19
Consequently, we reject Lew’s contention that the trial court imposed
an excessive burden of proof on him.
D. Lew’s Contention that the Trial Court Abused Its Discretion in
Denying His Motions for Sanctions Pursuant to Sections 128.5
and 128.7.
Lew’s final contention is that the trial court abused its discretion in
denying his motion for sanctions pursuant to section 128.5 against Di
Giacomo, and his motion for sanctions pursuant to section 128.7 against Di
Giacomo’s counsel. Section 128.5 permits a trial court to impose sanctions
against a party or its counsel, and section 128.7 permits it to impose
sanctions against just its counsel, for certain types of litigation misconduct.
(Code Civ. Proc., §§ 128.5, subd. (a); 128.7, subds. (a)-(c).)
Focusing first on the motion for sanctions against Di Giacomo pursuant
to section 128.5, our analysis begins and ends with the observation that the
trial court could not have granted this motion because the conduct it targeted
was conduct that had occurred as part of the prior CHRO case (see ante),
rather than conduct that had occurred in the present case—which is the case
in which the motion was filed.
Turning next to the motion for sanctions against Di Giacomo’s attorney
pursuant to section 128.7, we note that section 128.7 includes a safe harbor
provision that obligates a litigant seeking such sanctions to desist from filing
a sanctions motion until at least 21 days after having served the motion.
(§ 128.7, subd. (c)(1).) The purpose of the 21-day safe harbor provision in
section 128.7 is “to allow a party to withdraw an objectionable document and
thereby conserve judicial resources as well as save the parties the time and
expense of litigating sanctions.” (J.N. v. Goldberg (2026) 120 Cal.App.5th
544) The 21-day safe harbor provision is strictly applied. (Ibid.)
20
In the present case, Lew contends without citation to the record that he
“served Counsel with the [section 128.7] sanctions motion more than 21 days
before filing” and thus “established strict compliance with the ‘safe harbor’
provision.” However, we find no indication in the record that the motion was
served at least 21 days before it was filed. This constitutes a failure of proof.
For the reasons stated, we conclude Lew has not satisfied his burden on
appeal with respect to the sanctions motions.
III. DISPOSITION
The January 29 order is affirmed. Di Giacomo having not appeared in
this appeal, no costs are awarded.
KELETY, J.
WE CONCUR:
BUCHANAN, Acting P. J.
RUBIN, J.
21