Washington v. Horvath CA4/1 ( 2013 )

Filed 6/27/13 Washington v. Horvath CA4/1
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CHRISTOPHER WASHINGTON, D061068
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2009-00070679-
CU-HR-EC)
HELEN HORVATH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Fredrick
Mandabach, Retired, Judge. Dismissed.
Helen Horvath, in pro. per., for Defendant and Appellant.
Defendant and appellant Helen Horvath, who is self-represented, purports to
appeal the superior court's denial of her motion to modify a restraining order enjoining
her from harassing plaintiff and respondent Christopher Washington. But that order is
not appealable. Further, the record reflects the restraining order, by its terms, has
expired. Accordingly, this court cannot provide effective relief from the order, and the
appeal is dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2009, Washington filed a request under Code of Civil Procedure,1
sections 527.6 and 527.9 for a court order to stop Horvath's harassment of himself, his
wife and his daughter. Horvath noted that approximately one year earlier the court had
denied his previous request for such an order, but admonished Horvath to cease further
contact with him. Washington claimed Horvath's subsequent "nearly two year course of
harassing conduct, despite being told to stop by [himself] and a judge, and being
contacted by law enforcement, has risen to the level of being threatening." The court
issued a temporary restraining order and set a hearing for December 9, 2009.
Horvath filed an answer to Washington's request for orders to stop harassment,
generally denying Washington's claims, and alleging that, in fact, she had been harassed
and endangered by Washington and his wife. Following a hearing, the court issued a
restraining order which expired on December 8, 2012.
Horvath unsuccessfully moved to set aside the restraining order She later sought
reconsideration of that ruling, which the trial court decided it lacked jurisdiction to
address because Horvath had separately filed an appeal in this court.
1 All statutory references are to the Code of Civil Procedure.
2
In April 2011, Horvath again moved to set aside the restraining order, and in June
2011 she amended her motion, seeking to terminate the restraining order under section
533.
On October 14, 2011, the court responded to Horvath's new motions by first
summarizing the procedural history of the case: "Following the issuance of a restraining
order . . . [on December 9, 2009, Horvath] filed a motion pursuant to [section] 1008.
That motion was heard and denied . . . . [Horvath] then appealed the denial. This appeal
was dismissed by [the Court of Appeal] for failure to timely designate the record. Now
this same restraining order is the subject of two new motions" under sections 1008,
subdivision (b) and 533. The trial court denied the motions, ruling the parties had
presented no argument that the law upon which the restraining order was granted had
changed, and no basis existed for setting aside the restraining order because Horvath had
not proved there was new evidence which she could not, with reasonable diligence, have
discovered and produced at the hearing.
DISCUSSION
Horvath contends "the trial court erred on multiple levels during multiple hearings
over the life of the [restraining order]." Washington did not file a reply brief in this
appeal.
Under the authority of our previous cases, we dismiss this appeal on grounds the
court's denial of the motion for reconsideration is not an appealable order. (§§ 1008,
subd. (b), 533; Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458-1459; Tate v.
Wilburn (2010) 184 Cal.App.4th 150, 156; 160.)
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An alternative ground for dismissing Horvath's appeal regarding the court's
December 9, 2009 restraining order is that it expired on December 8, 2012. Accordingly,
this court cannot provide effective relief from that expired order. (Santa Monica
Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, 1547.) A court has
discretionary authority to decide moot issues: "(1) when the case presents an issue of
broad public interest that is likely to recur [citation]; (2) when there may be a recurrence
of the controversy between the parties [citation]; and (3) when a material question
remains for the court's determination." (Id. at p. 1548.) Horvath has not shown that this
case falls within these discretionary exceptions.
DISPOSITION
The appeal is dismissed. No costs are awarded on appeal.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
McINTYRE, J.
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