Lopez v. Chicas CA1/3

Filed 5/11/23 Lopez v. Chicas CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
ANDREA VANESSA VILLALTA
LOPEZ,
Plaintiff and Respondent, A165476
v. (San Mateo County
HENRY DAVID CHICAS, Case No. 22-CIV-02096)
Defendant and Appellant.
Henry David Chicas appeals from the trial court order granting Andrea
Vanessa Villalta Lopez a civil harassment restraining order against him
pursuant to Code of Civil Procedure section 527.6.1 Because Chicas was not
allowed to participate in the hearing on the restraining order despite being
present at that hearing and ready to participate, we shall reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On May 24, 2022, Lopez filed a form request for a civil harassment
restraining order against Chicas, and the court issued a temporary
restraining order set to expire at the time of the hearing.
In her form request, she identified Chicas as a “friend” and noted they
lived in the same community. On the form, Lopez indicated the harassment
1 All further statutory references are to the Code of Civil Procedure.
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occurred on March 22, 2022. In describing the harassment, she explained
that she, Chicas, and other friends went to a concert on the night of
December 11, 2021. She drank more than usual but felt safe because she was
with friends. The last thing she remembered was walking on the street close
to the entrance of the concert venue. When she woke the next day, she was
lying down on Chicas’ bed. As she was getting up, Chicas came in and Lopez
asked him what happened. In marginalia, she notes her explanation is
continued on the next page, but no further explanation is included on the
next page or anywhere else in the request or record. In response to the form’s
question regarding whether she was harmed or injured due to the
harassment, Lopez stated that she had a bruise on her left leg at “the time of
sexual abuse on December 12, 2021.” Lopez also identified other times
Chicas harassed her, asserting he drove by her house almost daily;
threatened to show pictures of her naked; and offended her with bad words
which made her feel denigrated.
Lopez requested the court order Chicas to stop harassing and
contacting her; to delete all pictures of her and information he had about her
immediately; to stop discussing her personal life; and to stay as far away as
possible from her and her home (while acknowledging Chicas lived about four
blocks away from her).
On June 14, 2022, at 9:30 a.m., Judge Susan Greenberg held a hearing
on the petition. Lopez appeared in propria persona, assisted by an
interpreter. Chicas was present in court and represented by counsel.
Following appearances, the court stated: “[U]nfortunately, I was
informed that at nine o’clock when this case was called in front of the
presiding judge . . . the only party that was present was the petitioner, Ms.
Villalta Lopez, and that you [counsel for Chicas] did not arrive until 9:32 this
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morning. [¶] So your client will not be permitted to be part of the
proceedings this morning as not having timely appeared.” Asked to be heard
on the matter, Chicas’ counsel explained: “Your Honor, Mr. Chicas was
sitting outside . . . of Judge Davis’ courtroom. He was not sure if he was
permitted to go in due to the COVID rules. [¶] I was in court on the fourth
floor . . . for five pretrials that started at 8:30. I permitted a colleague of
mine . . . to do her pretrials ahead of mine because she was concerned about
being sent out to trial in front of Judge Davis at 9 a.m. [¶] So I let her go
ahead of me which then caused me to be late, your Honor.”
Judge Greenburg expressed her understanding and thanked counsel.
She then turned to Lopez, who had been sworn to testify, and asked, “Is
everything in your petition for a civil harassment restraining order that you
filed on May 24th of 2022 true and correct?” Lopez replied, “Yes. True.”
Asked if there was additional information she wanted the court to know,
Lopez indicated that she had a police report from June 8, 2022, indicating
there had been a violation of the temporary restraining order issued on May
24, 2022, when Chicas had come within 100 yards of her house and car.
Based on Lopez’s testimony, Judge Greenberg expressed the court’s
intent to issue a permanent restraining order against Chicas. She stated
that Judge Davis was clear that the case was a “prove-up; that there was no
timely appearance by the respondent.” Chicas’ counsel again attempted to
explain the circumstances of her delay and added that there was a lot of
testimony the court needed to consider that completely contradicted and
undermined Lopez’s credibility. Judge Greenberg responded: “You did not
call that department. You did not notify them that you were not going to be
on time. That’s absolutely unacceptable.” Chicas requested a continuance,
which the court denied.
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The court granted Lopez’s request for a restraining order. It issued
personal conduct orders barring Chicas from harassing or contacting Lopez,
and from taking any action to obtain her address or location. The court also
ordered Chicas to stay at least 100 yards away from Lopez and her house and
car, except when he was at his own residence.
This appeal followed. Lopez, who continues to represent herself in
propria persona, did not file a respondent’s brief, but did submit a letter to
the court which did not comply with the requirements for a respondent’s brief
and which we do not construe as one.2
DISCUSSION
Section 527.6 was enacted “ ‘to protect the individual’s right to pursue
safety, happiness and privacy as guaranteed by the California Constitution.’
[Citations.] It does so by providing expedited injunctive relief to victims of
harassment.” (Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1412.) “A person
who has suffered harassment . . . may seek a temporary restraining order
and an order after hearing prohibiting harassment.” (§ 527.6, subd. (a)(1).)
“ ‘Harassment’ ” is defined, in pertinent part, as “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. The course of
conduct must be that which 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).) “If the judge
2 “ ‘ “When a litigant is appearing in propria persona, he is entitled to the
same, but no greater, consideration than other litigants and attorneys
[citations]. Further, the in propria persona litigant is held to the same
restrictive rules of procedure as an attorney.” ’ ” (Burnete v. La Casa Dana
Apartments (2007) 148 Cal.App.4th 1262, 1267.)
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finds by clear and convincing evidence that unlawful harassment exists, an
order shall issue prohibiting the harassment.” (§ 527.6, subd. (i).)
On appeal from the grant of a section 527.6 civil harassment
restraining order, “[w]e review issuance of [the] protective order for abuse of
discretion, and the factual findings necessary to support the protective order
are reviewed for substantial evidence.’ ” (Parisi v. Mazzaferro (2016) 5
Cal.App.5th 1219, 1226, disapproved on another ground in Conservatorship of
O.B. (2020) 9 Cal.5th 989, 1003, fn. 7.) However, “whether the facts, when
construed most favorably in [petitioner’s] favor, are legally sufficient to
constitute civil harassment under section 527.6, and whether the restraining
order passes constitutional muster, are questions of law subject to de novo
review.” (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188.)
Chicas contends the trial court’s refusal to allow him to participate in
the hearing denied him due process as well as his statutory right to present
relevant evidence. Without addressing the due process contentions, we
conclude the trial court erred by denying Chicas the ability to present
relevant testimony as required by section 527.6.
The statutory scheme for civil harassment restraining orders provides
that “a hearing shall be heard on the petition” “[w]ithin 21 days, or, if good
cause appears to the court, 25 days from the date that a petition for a
temporary order is granted or denied, a hearing shall be heard on the
petition.” (§ 527.6, subd. (g).) At the hearing, “the judge shall receive any
testimony that is relevant, and may make an independent inquiry.” (§ 527.6,
subd. (i), emphasis added.) “Compared to the normal injunctive
procedures . . . , section 527.6 provides a quick, simple and truncated
procedure. [Citation.] The statute provides for the proceeding to be
completed in a matter of weeks.” (Yost v. Forestiere (2020) 51 Cal.App.5th
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509, 521.) “The Legislature offset the expedited procedures in section 527.6
with safeguards and several provisions limiting the scope of civil harassment
restraining orders.” (Ibid.) One “set of safeguards assures that a person
charged with harassment is given an opportunity to present his or her case.”
(Id. at p. 522.)
In Schraer v. Berkeley Property Owners’ Assn. (1989) 207 Cal.App.3d
719 (Schraer), the respondents petitioned for a harassment injunction
pursuant to section 527.6. (Id. at p. 725.) The parties submitted written
declarations, as well as various newspaper articles and clippings, to the trial
court, but the court “declined to permit live testimony or cross-examination of
declarants.” (Ibid.) The trial court granted the requested injunctive relief.
(Id. at p. 726.) The appellate court concluded the trial court erred in refusing
to permit testimony: “[A]lthough the procedures set forth in the harassment
statute are expedited, they contain certain important due process safeguards.
Most notably, a person charged with harassment is given a full opportunity
to present his or her case, with the judge required to receive relevant
testimony and to find the existence of harassment by ‘clear and convincing’
proof . . . .” (Id. at pp. 730–731.) The court further noted that “if it is offered,
relevant oral testimony must be taken from available witnesses” and that
limitations on a defendant’s right to present evidence and cross-examine
witnesses “run the real risk of denying such a defendant’s due process rights,
and would open the entire harassment procedure to the possibility of
successful constitutional challenge on such grounds.” (Id. at p. 733.)
Similarly, in Nora v. Kaddo (2004) 116 Cal.App.4th 1026 (Nora), the
parties sought to present testimony in addition to the declarations and
exhibits attached to the petitions for mutual restraining orders under section
527.6. (Id. at p. 1028.) The trial court “indicated that testimony was
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unnecessary, as it was prepared to rule on the papers presented by the
parties” and entered both orders. (Id. at pp. 1028–1029.) The appellate court
concluded that this ruling “deprived both parties of important rights that the
statute expressly preserved to them.” (Id. at p. 1029.)
More recently, in CSV Hospitality Management LLC v. Lucas (2022) 84
Cal.App.5th 117 (CSV), this court examined procedural requirements in a
workplace violence restraining order hearing under section 527.8, which
“parallel those under section 527.6.” (CSV, at p. 122.) There, the defendant
subject to the restraining order argued that the trial court erroneously
limited his ability to present a defense by depriving him of the opportunity to
cross-examine an adverse witness during the hearing. (Id. at p. 123.)
Construing analogous language in section 527.8, subd. (j) which states that
the trial court “ ‘shall receive any testimony that is relevant’ ” during the
hearing on a petition, this court concluded: “The plain language of this
provision suggests that the Legislature intended for a trial court to consider
all relevant evidence, including evidence by cross-examination, when deciding
whether to issue an injunction.” (CSV, at p. 123.) The court concluded that
the failure to allow cross-examination violated the statute. (Ibid.)
These cases show that where a defendant to a request for a restraining
order in a civil harassment proceeding offers relevant testimony on his or her
behalf, the trial court must allow such testimony to be heard. Here, this did
not happen. Contrary to the express requirements of section 527.6, the trial
court expressly refused to allow Chicas to participate in the hearing as he
was not allowed to proffer relevant testimony and not allowed to cross-
examine Lopez. Chicas and his attorney were both present in the courtroom
at the time of the hearing, and counsel implored the court that there was
significant and salient testimony the court needed to consider that she
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averred contradicted and undermined Lopez’s credibility. In allowing Lopez
to testify as to the veracity of her petition while depriving Chicas of his right
to defend, the court neglected the statutory safeguards the Legislature built
into the statute.
Chicas and his counsel’s apparent tardiness to the hearing when it was
initially called at 9:00 a.m. does not compel a different result.3 While we
acknowledge that courts generally retain jurisdiction to control proceedings,
this is not a situation, for example, where a litigant and his counsel showed
up after a hearing had already concluded. At the hearing during which
Lopez’s petition was actually adjudicated, Chicas and his counsel were
present in the courtroom and prepared to participate. This hearing, which
took place approximately 30 minutes after the matter was initially called,
was the proceeding in which the court swore in Lopez and received her
testimony. Chicas was therefore present at the hearing during which the
court allowed Lopez to present her case and made its findings.
For the above reasons, we conclude that the trial court abused its
discretion in denying Chicas an opportunity to present relevant evidence at
the hearing. In view of our decision, we need not address whether Lopez
established the elements of a section 527.6 restraining order by clear and
convincing evidence.
DISPOSITION
The permanent restraining order is reversed. The temporary
restraining order is reinstated to remain in effect until 21 days after issuance
of the remittitur, unless earlier terminated or extended by order of the trial
court. The trial court is directed to conduct a hearing on the petition within
3 We do not endorse or excuse counsel’s failure to timely appear and
agree with Judge Greenberg that counsel’s failure to communicate directly
with the court regarding the unanticipated tardiness was not acceptable.
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21 days of issuance of the remittitur unless continued for good cause as
permitted by section 527.6 or unless Lopez notifies the court she no longer
intends to pursue the order. The parties shall bear their own costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(5).)
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_________________________
Petrou, J.
WE CONCUR:
_________________________
Tucher, P.J.
_________________________
Rodríguez, J.
A165476/Lopez v. Chicas
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