NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

O'ROURKE, J.

Javier Guerrero (Guerrero) appeals the trial court's order granting Melody Grover-Kwong's (Grover-Kwong) petition for a restraining order against him. Guerrero contends there is insufficient evidence to support the restraining order under Code of Civil Procedure section 527.61 because, among other things, the court failed to make findings that his actions constituted a pattern of harassment or that there was a reasonable probability he would cause future harm to Grover-Kwong. We agree with Guerrero and reverse; therefore, we need not address his other contentions.2

FACTUAL AND PROCEDURAL BACKGROUND3

Guerrero is a member and trustee of the Fraternal Order of Eagles, Aerie 244 (Aerie), which is a nonprofit mutual benefit organization. Grover-Kwong was a member and vice president of the Auxiliary, the women's adjunct to Aerie.

On February 27, 2012, the Auxiliary hosted a dinner for members of the Auxiliary and Aerie. Guerrero was the trustee on duty at the event, meaning he had authority to exercise "control over the inside of the building." At the event, Grover-Kwong sold "50/50" raffle tickets. Guerrero's wife and Grover-Kwong got into an argument whether Grover-Kwong was authorized to sell the tickets. Guerrero's wife telephoned someone to clarify that matter. In the meantime, Guerrero and Grover-Kwong were arguing about keeping the facilities clean. Guerrero told her, "other people are sick of cleaning up your crap." Grover-Kwong denied that the Auxiliary had left the facilities dirty.

Grover-Kwong testified that during this argument, Guerrero "was jumping up in the air with one fist and his other finger both within less than maybe a foot from my face, and my two children." Guerrero told her that his wife was getting instructions that Grover-Kwong would have to carry out. Grover-Kwong replied, "if she [Guerrero's wife] thinks she's going to tell me what to do, then she can kiss my butt." Guerrero's wife heard that comment and stopped her phone call. Guerrero told Grover-Kwong, "I'm not going to hit you." Guerrero also told Grover-Kwong, "We're going [to] table this whole thing, and the trustees are going to talk about it tomorrow." Grover-Kwong's mother and another woman intervened, the altercation ended, and Grover-Kwong went to eat. Later in the evening, Grover-Kwong and her children went to the bar and bought orange juice from Guerrero without incident.

After eating, Grover-Kwong went to the kitchen to do the dishes and encountered Guerrero. She told Guerrero, "I don't understand what is happening, Javier[.] You and I have never had any problems whatsoever." Guerrero turned around, bent over, pointed to his butt and yelled at Grover-Kwong, "You told my wife to kiss your ass." Grover-Kwong denied using that word, explaining she had said, "butt" because she would not use Guerrero's word in front of her children, who were standing nearby. At the end of the night, Grover-Kwong asked someone to escort her, her mother and her children to their car. She reported the incident to the police that night.

On February 28, 2012, Aerie's board of trustees met and discussed the events of the previous night. As a result of the board's discussion, Grover-Kwong received a letter suspending her from certain activities due to "conduct unbecoming of an Eagle." Subsequently, Grover-Kwong sought and obtained a meeting with Aerie's trustees to challenge the suspension.

On March 1, 2012, the superior court granted Grover-Kwong's ex parte application for a civil harassment restraining order against Guerrero.

On March 21, 2012, at the end of the first day of testimony in this case, Guerrero appeared at the Aerie's premises while Grover-Kwong was presiding over an Auxiliary meeting. The court's statement of decision states Guerrero "was not required at any meeting or function at the premises, yet he chose to appear and make his presence known, evidencing [his] intent to provoke further discord."

On March 29, 2012, after hearing testimony for five days, the court found that Guerrero had assaulted Grover-Kwong in the February 27, 2012 incident. The court relied in part on its observation of Guerrero's trial testimony: "[Guerrero] was getting demonstrative when he was explaining how he was pointing his finger, and how he was upset because Ms. Grover[-Kwong] would say something like that about his wife. [¶] And you know[,] should [Grover-Kwong] have used a different phrase[?] [Y]eah, absolutely. But again, that doesn't make it right to commit an assault. And [Guerrero] himself in his testimony when you do that I don't think he realized it, but he put up his fist while he was testifying. . . . I think he did assault her, and I think he got out of control. [¶] I agree with [defense counsel]. This could have been resolved before it came to this point in court."

In discussing the possibility Guerrero would cause future harm to Grover-Kwong, the court referred to Guerrero's subsequent action of filing a complaint with the Aerie board of trustees, stating, "[I]f I thought this was a one time incident and things would settle down, and it would be resolved, then . . . I wouldn't have to . . . issue the restraining order, but the board of trustees decided to go do this meeting real quickly the next night[,] a Wednesday night. Right before the meeting for the Auxiliary and they didn't invite anybody else to come in. [¶] It's probably good as to the point of Ms. Grover[-Kwong] that they didn't. Because I don't see her getting a fair hearing within that group. I just don't think it could happen." The court's statement of decision states, "[Guerrero's] subsequent behavior, combined with the parties' membership and status as leaders within the same organization[,] makes it evident that this conduct is likely to continue without a restraining order."

The court issued the restraining order for three years, finding Guerrero had "invaded [Grover-Kwong's] personal space and shouted at her while angrily shaking his finger and fist at her in a manner constituting an assault." Further, his conduct alarmed Grover-Kwong's mother. The order prohibited Guerrero from harassing Grover-Kwong, contacting her directly or indirectly, coming within 100 yards of Grover-Kwong or her mother, and coming to Aerie headquarters on certain days of the week.

DISCUSSION

Relying primarily on our holding in Scripps Health v. Marin (1999) 72 Cal.App.4th 324 (Scripps), which was applied in Russell v. Douvan (2003) 112 Cal.App.4th 399 (Russell), Guerrero argues the court improperly found a course of conduct from his single act of "unlawful violence" against Grover-Kwong, and no grounds existed for finding there was a reasonable probability of future harm to Grover-Kwong.

We review the trial court's decision granting the restraining order for substantial evidence. (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.) Section 527.6, subdivision (a)(1), provides that a victim of harassment "may seek a temporary restraining order and an injunction prohibiting harassment as provided in this section." Subdivision (b)(3) defines "Harassment" to include not just actual violence or threats of violence, but also "a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person," that serves no legitimate purpose, and that is not constitutionally protected activity. To constitute harassment, 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).) "`Credible 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).)

A "[c]ourse of conduct" in section 527.6 is defined 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, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or computer email. Constitutionally protected activity is not included within the meaning of `course of conduct.'" (§ 527.6, subd. (b)(1).) The trial court must find clear and convincing evidence of harassment. (§ 527.6, subd. (i).) "`"Clear and convincing" evidence requires a finding of high probability.'" (Russell, supra, 112 Cal.App.4th, at p. 401.)

This court held in Scripps: "[T]he express codified purpose of a prohibitory injunction is to prevent future harm to the applicant by ordering the defendant to refrain from doing a particular act. [Citations.] Consequently, injunctive relief lies only to prevent threatened injury and has no application to wrongs that have been completed. [Citation.] It should neither serve as punishment for past acts, nor be exercised in the absence of any evidence establishing the reasonable probability the acts will be repeated in the future. . . . `Thus, to authorize the issuance of an injunction, it must appear with reasonable certainty that the wrongful acts will be continued or repeated.'" (Scripps, supra, 72 Cal.App.4th at pp. 332-333.)

We agree with Guerrero's contention there was no evidence he engaged in a continuing conduct as required by section 527.6. Indeed, Grover-Kwong concedes there was "only [one] instance of attempted violence." On the night of the incident, she admitted to Guerrero that they never before had problems between them. Here, as in Russell, "[w]hen the court concluded that a single act of unlawful violence required the issuance of an injunction, it construed its role too narrowly. There may well be cases in which the circumstances surrounding a single act of violence may support a conclusion that future harm is highly probable." (Russell, supra, 112 Cal.App.4th at p. 404.) That finding, however, must be made on the basis of substantial evidence.

The only evidence the trial court relied on for its finding of future harm to Grover-Kwong related to internal squabbles within and between Aerie and Auxiliary, and do not involve the kind of assaultive conduct that the court used to justify the grant of the restraining order. More to the point, there is no substantial evidence that, apart from the February 27, 2012 incident, it was reasonably probable Guerrero would engage in "harassment" or make a "credible threat" to Grover-Kwong as those terms are defined in section 527.6, subdivisions (b)(2) and (3). Specifically, the court ruled, "The evidence clearly indicates a significant and pervasive controversy within the Aerie 244, and a similar conflict within its Auxiliary pertaining to officer duties and answerability. Leading up to the conduct at issue on February 27, 2012, unauthorized financial activity had been uncovered within the organization. Members of both the Aerie and the Auxiliary had been attempting to rectify the perceived defects in various ways including through proposed bylaw changes and requests for the filing of required reports. . . It is within the context of this dissension that the conduct at issue occurred."4 But even Grover-Kwong disavows the court's reliance on those acts for its finding of future harm, explaining: "The trial court's gratuitous comments regarding the political machinations within the Aerie organization . . . are irrelevant to the finding of an assault or continued course of conduct by Guerrero."5 We conclude that the record is devoid of any evidence to support a finding Guerrero engaged in a continuous course of conduct, or that there is a reasonable probability of future harm to Grover-Kwong. Accordingly, the restraining order is reversed.

DISPOSITION

The restraining order filed on March 29, 2012, is reversed. The parties shall bear their own costs on appeal.

HUFFMAN, Acting P. J. and McDONALD, J., concurs.