Sabado v. Gaylord CA2/5 ( 2016 )

Filed 1/29/16 Sabado v. Gaylord CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
ELEANOR SABADO, B261926
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SQ006689)
v.
KEVIN JAMES GAYLORD,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Lisa Hart
Cole, Judge. Reversed with instructions.
Tabatabai & Blonstein, Farzad Tabatabai and Rema Haddad for Defendant and
Appellant.
Tanya Dellaca for Plaintiff and Respondent.
I. INTRODUCTION
This appeal involves the application of former Family Code1 section 243,
subdivision (d) to a continuance request made during an initial appearance in a
restraining order case. (Stats. 2010, ch. 135, § 156.) Effective January 1, 2016, sections
243 and 245 were amended to address questions concerning continuances during an
initial appearance in a restraining order case. (Stats. 2015, ch. 411, §§ 5-6.) Unless
otherwise indicated, all references to section 243 are to the statute in effect in 2014 and
2015.
Defendant, Kevin James Gaylord, appeals from a restraining order issued against
him. Plaintiff, Eleanor Sabado, filed a restraining petition naming defendant. She
alleged defendant was stalking her. Plaintiff served defendant with the restraining order
notice pursuant to section 243, subdivision (b), six days prior to the noticed hearing. At
the restraining order hearing, defendant requested a continuance under section 243,
subdivision (d). Defendant’s continuance request was denied. Following testimony from
plaintiff and defendant, the trial court found in her favor and issued the restraining order.
Defendant asserts the trial court committed reversible error as a matter of law
because a continuance under section 243, subdivision (d) is mandatory. We agree with
defendant that he was entitled to a mandatory continuance under Family Code section
243, subdivision (d). Upon remittitur issuance, defendant shall be entitled to a new trial
under the circumstances we will describe.
II. BACKGROUND
Prior to the present action, on May 15, 2013, plaintiff successfully obtained a
domestic violence restraining order against defendant. The restraining order trial was
1
Future statutory references are to the Family Code.
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uncontested. This permanent restraining order was eventually rescinded in August 2014
because defendant was not properly served with the necessary papers.
On November 18, 2014, plaintiff filed another petition for a domestic violence
restraining order against defendant. According to the petition: plaintiff and defendant
had dated; plaintiff experienced extreme emotional distress, anxiety and fearfulness
because of defendant; and there were repeated acts of stalking, vandalism and harassment
directed at plaintiff and her family. She sought an order prohibiting defendant from
harassing, stalking and contacting her. Plaintiff also wanted him to stay at least 100
yards away from her two children. Plaintiff submitted a sworn declaration in support of
her restraining order request. A commissioner issued a temporary restraining order on
November 18, 2014, which was to remain in effect until the restraining order hearing.
On December 9, 2014, the restraining order hearing was held. Both plaintiff and
defendant were sworn as witnesses prior to the hearing. Prior to any witness
examination, defendant, appearing in propria persona, sought a continuance. Defendant
stated, “I was hand served, like, six days ago.” Defendant stated, “I have an attorney in
Downtown L.A. that has two hearings. . . .” Plaintiff’s counsel affirmed defendant had
been served on December 3, 2014. Defendant sought a continuance to depose plaintiff.
Defendant asserted he had a bad back injury over the Thanksgiving weekend and said, “I
haven’t had a chance to really see an attorney, no less retain one. . . .” Defendant
contended he was unable to bring the petition and the attached documents with him to the
hearing because of his injury for which he was receiving chiropractic care. Defendant
also wanted time to secure: witnesses; his mother; a former attorney; and exhibits. Prior
to the receipt of any testimony in connection with the merits, defendant explicitly cited
section 243, subdivision (d) as a ground for a continuance. Defendant’s continuance
motion was denied.
Plaintiff and defendant both testified. At the end of the hearing, the trial court
found plaintiff credible and issued the restraining order. The permanent restraining order,
which names plaintiff as a protected person, was issued on December 9, 2014. Also
named as protected persons are plaintiff’s two children and niece. The order requires
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defendant to stay 100 yards away from the protected persons. The order also requires
defendant to not harass, contact or attempt to obtain the addresses of the protected
persons. The order is scheduled to expire on December 31, 2017. Defendant timely
appealed.
III. DISCUSSION
Section 243, subdivision (d) provides: “If service is made under subdivision (b),
the respondent may file a response that explains or denies the allegations in the petition.
The respondent is entitled, as a matter of course, to one continuance for a reasonable
period, to respond to the petition for orders.” The parties do not dispute Family Code
section 243, subdivision (d) applies. Service was accomplished in compliance with
section 243, subdivision (b)2 thereby triggering the section 243, subdivision (d)
continuance right. Defendant asserts the denial of his right to present all his evidence is
reversible error. Defendant relies upon Ross v. Figueroa (2006) 139 Cal. App. 4th 856,
860-869 (Ross). We agree that Ross is controlling.
In Ross, supra, the defendant in a domestic violence restraining order petition
proceeding appeared in propria persona. (Ross, supra, 139 Cal.App.4th at p. 860.) The
defendant requested a continuance prior to the petition hearing. The trial court denied the
defendant’s continuance request. (Ibid.) The defendant was not provided the opportunity
to testify or present evidence. (Ibid.) Section 243, as it was in effect in 2006 when Ross
was decided, provided that if a temporary restraining order had been issued without prior
notice to the defendant: “[T]he respondent is entitled, as of course, to one continuance
for a reasonable period, to respond to the application for the order.” (Stats. 2000, ch. 90,
§ 1, p. 1331; Ross, supra, 139 Cal.App.4th at p. 862, fn. 5.) The Court of Appeal
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Section 243, subdivision (b) states: “If a petition under this part has been filed, the
respondent shall be personally served with a copy of the petition, the temporary order, if
any, and the notice of hearing on the petition. Service shall be made at least five days
before the hearing.”
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concluded, “The [trial] court simply lacked the discretion to deny [the defendant] the
continuance he requested because he was entitled to it as a matter of right . . . .” (Id. at
p. 864.) The Court of Appeal reversed and remanded for a new hearing. (Id. at p. 869.)
The current version of section 243 provides defendant with a continuance solely if he was
served under section 243, subdivision (b). Defendant was entitled to a continuance as a
matter of law. The trial court lacked discretion to deny a continuance under the
circumstances. (Ross, supra, 139 Cal.App.4th at p. 864.) There is no merit to plaintiff’s
prejudice contention. The denial of defendant’s continuance request denied him the right
to counsel and to secure witnesses. This analysis is particularly pronounced in light of
the fact that defendant had only six days’ notice of the petition’s allegations and
proceedings.
As in Ross, we reverse the permanent restraining order. No issue has been raised
concerning the temporary restraining order which was to remain in effect pending the
hearing on the request for permanent injunctive relief. Thus, as in Ross, pending
remittitur issuance, the permanent restraining order is to remain in full force and effect.
(Ross, supra, 139 Cal.App.4th at p. 869.) Upon remittitur issuance, the permanent order
is to be set aside and, if requested by plaintiff, the dispute retried. The temporary
restraining order shall remain in full force and effect for 90 days following remittitur
issuance unless otherwise ordered by the trial court. Absent good cause, the trial court is
to hold the retrial within 30 days of any request for retrial. The securing of a retrial date
may be accomplished by an ex parte or noticed motion to that effect.
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IV. DISPOSITION
The December 9, 2014 order is reversed. Upon remittitur issuance, the trial court
is to proceed as discussed in the immediately preceding paragraph. The parties are to
bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
KRIEGLER, J.
BAKER, J.
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