J.M. v. W.T. ( 2020 )

Filed 3/25/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
J.M., B296295
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19STRO00129)
W.T.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura Hymowitz, Commissioner. Reversed.
J.M., self-represented litigant, for Plaintiff and Appellant.
No appearance by Defendant and Respondent.
______________________________
I. INTRODUCTION
Plaintiff J.M. appeals from an order denying his petition for
a domestic violence protective order pursuant to Family Code1
section 6200 et seq., the Domestic Violence Prevention Act
1 Further statutory references are to the Family Code.
(DVPA). Plaintiff contends that the trial court abused its
discretion in denying his request for a continuance of the hearing
and in denying the protective order. We reverse.
II. BACKGROUND
On January 8, 2019, plaintiff filed a request for a domestic
violence protective order against defendant W.T. Plaintiff alleged
that he and defendant had been in a dating relationship that
included incidents of abuse. Specifically, plaintiff alleged that on
December 23, 2017, defendant threw a book at plaintiff and
yelled at him. On January 13, 2018, defendant called plaintiff a
“‘fucking cunt’” repeatedly over the phone. On January 20, 2018,
defendant hit plaintiff with a closed fist multiple times, leaving
him with bruises on the leg and chest. That same day, during
sex, defendant bit plaintiff on the right side of his torso, breaking
the skin. On February 2, 2018, defendant sent text messages to
plaintiff threatening to hurt a dog that defendant had recently
adopted. Defendant was angry and jealous that the dog had
chosen to lay on the couch with plaintiff instead of with
defendant. On February 20, 2018, defendant drove recklessly
with plaintiff in the car. Defendant also yelled at plaintiff and
punched the steering wheel. On March 17, 2018, defendant
demanded to be allowed into plaintiff’s condominium. After being
allowed in, defendant screamed at plaintiff, blocked plaintiff’s
movements, and flailed his arms. Defendant noticed plaintiff had
installed security cameras and he demanded that plaintiff turn
them off.
2
On January 8, 2019, the trial court issued a temporary
restraining order against defendant. The court scheduled the
DVPA hearing for January 29, 2019. (§ 242.)
On January 24, 2019, plaintiff submitted a request to
continue the DVPA hearing using Judicial Council Form DV-115.
As to item 1, part b, plaintiff checked box one, indicating that he
needed a continuance because he “could not get the papers served
before the hearing date.” He also checked box four, “[o]ther good
cause,” explaining that he was scheduled to undergo a medically-
necessary spinal surgery on January 28, 2019, the day before the
scheduled hearing, and had not learned about the date for the
surgery until January 15, 2019. According to plaintiff, this was
his second spinal surgery and he anticipated that he would “be
physically unable to stand or sit for any length of time and
[would] be unable to walk or care for [him]self without
substantial assistance for a period of several days, as was the
case with the previous surgery.” Plaintiff further explained that
he would likely require medication after the surgery, which
would impair his ability to competently and adequately present
evidence at the hearing, including his own testimony.
On January 29, 2019, the trial court held the DVPA
hearing. Neither of the parties appeared. The court dismissed
plaintiff’s request for a protective order, stating: “This one is
dismissed with prejudice. The most recent incident happened ten
months ago, so it is dismissed with prejudice.”2
2 We note that “[t]he length of time since the most recent act
of abuse is not, by itself, determinative. The court shall consider
the totality of the circumstances in determining whether to grant
or deny a petition for relief.” (§ 6301, subd. (c).)
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The trial court also denied plaintiff’s request for a
continuance and issued an order stating: “The requesting party
did not appear at the January 29, 2019[,] hearing. This request
was received by the [c]ourt on January 24, 2019. Request to
continue a hearing prior to the scheduled hearing date must be
submitted to Department 2C by way of an Ex-Parte Application.”
On March 11, 2019, plaintiff timely filed a notice of appeal
of the January 29, 2019, order.
III. DISCUSSION
Plaintiff contends that the trial court erred by denying his
request for a continuance of the hearing and his request for a
domestic violence protective order. We address the denial of
plaintiff’s request for a continuance first.
A. Legal Authority
Pursuant to section 245, subdivision (b): “Either party may
request a continuance of the hearing [under the DVPA], which
the court shall grant on a showing of good cause. The request
may be made in writing before or at the hearing or orally at the
hearing. The court may also grant a continuance on its own
motion.”
The failure to grant a requested continuance is reviewable
on appeal from the judgment. (Freeman v. Sullivant (2011) 192
Cal. App. 4th 523, 527.) “Trial courts generally have broad
discretion in deciding whether to grant a request for a
continuance.” (Ibid.) “The denial of a motion for continuance for
absence of a party may constitute an abuse of discretion by the
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trial court sufficient to justify reversal only where there is an
affirmative showing of ‘good cause,’ such as serious illness or
unforeseen circumstances which prevented a party from
appearing at trial.” (Young v. Redman (1976) 55 Cal. App. 3d 827,
831; see also In re Marriage of Teegarden (1986) 181 Cal. App. 3d
401, 406.)
B. Analysis
The basis for the trial court’s denial of plaintiff’s request for
a continuance is not clear. The court noted that the “[r]equest to
continue a hearing prior to the scheduled hearing date must be
submitted to Department 2C by way of an Ex-Parte Application.”
It is undisputed that plaintiff submitted his request “prior to the
scheduled hearing date,” that is, January 24, 2019, although the
court did not file it until January 29, 2019.
To the extent the trial court denied the request because
plaintiff did not serve defendant with notice of either the request
for a protective order or the request for a continuance before the
January 29, 2019, hearing, we note that section 245 does not
require any such prior service. To the contrary, an earlier
version of section 245 specifically provided that: “The court may,
upon the filing of a declaration by the petitioner that the
respondent could not be served within the time required by
statute, reissue an order previously issued and dissolved by the
court for failure to serve the respondent.” (Stats. 2010, ch. 572,
§ 10.) This language, which expressly permitted a continuance
on the grounds that a petitioner had failed to serve a respondent
with the request for a protective order, is inconsistent with
requiring service on respondent prior to the granting of a request
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for continuance. Section 245 was amended in January 2016 by
Assembly Bill No. 1081 (2015–2016 Reg. Sess.), but the
Assembly Judiciary Committee’s analysis indicates that the
amendment was meant to broaden, not limit, the permissible
grounds for continuance: “[T]his bill allows a continuance to be
granted for either party for good cause shown. As the author has
correctly identified, the need for a continuance is not limited to
inability of service, which is what the current law provides for
petitioners.” (Assem. Com. on Judiciary, Analysis of Assem. Bill
No. 1081 (2015–2016 Reg. Sess.) May 2, 2015, pp. 4–5; cf. Stats.
2010, ch. 572, § 10.)
Plaintiff’s declared reasons for requesting a continuance
were: that he had been unable to serve defendant prior to the
hearing date; that he would be undergoing necessary spinal
surgery the day before the hearing; and that as a result of the
surgery, he would be unable to walk or care for himself for a
period of several days. Further, plaintiff explained that his
surgery had not been scheduled until January 15, 2019. In other
words, this was an unforeseen circumstance. On these facts, we
conclude that plaintiff demonstrated good cause for a continuance
of at least a few days and the trial court thus abused its
discretion by denying any continuance at all. (See, e.g., Cohen v.
Herbert (1960) 186 Cal. App. 2d 488, 492, 496 [denying a
continuance of one week for defendants to prepare affidavit was
an abuse of discretion].) We will reverse and remand for the trial
court to schedule a new DVPA hearing. (Ross v. Figueroa (2006)
139 Cal. App. 4th 856, 868.) We need not address plaintiff’s
remaining arguments concerning the trial court’s denial of the
request for a protective order.
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IV. DISPOSITION
The order denying the request for a domestic violence
protective order is reversed and the matter remanded to the trial
court with instructions to grant the plaintiff’s request for
continuance within 30 days after issuance of this court’s
remittitur. If plaintiff still desires a protective order, the court
shall set a new hearing date. In the interests of justice, plaintiff
shall bear his own costs on appeal.
KIM, J.
We concur:
RUBIN, P. J.
MOOR, J.
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