Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. 09CECG02951Martin Suits, Judge.
Thomas Lee, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
OPINION
Before Wiseman, Acting P.J., Kane, J., and Detjen, J.
Procedural History and Factual Summary
Appellant Thomas Lee filed in Fresno County Superior Court a request for a temporary restraining order and permanent injunction against respondent Tad Best pursuant to Code of Civil Procedure section 527.6. The allegations of the petition were that Lee feared for his life as a result of threats made against him by Best in the context of a child custody dispute. Lee was the live-in boyfriend of Best’s ex-wife. Best claimed that Lee was physically abusing Best’s sons. The sons lived with Lee and their mother, Best’s ex-wife. Best filed a response to the petition, stating that he did not agree with the allegations of the petition and that his statements, alleged in the petition, were not threats of violence but simply notice to Lee that Best would pursue criminal action in order to protect his sons.
All further references are to the Code of Civil Procedure unless otherwise noted.
The court issued a temporary restraining order and set the matter for hearing. Both Lee and Best appeared at the hearing. The trial court, after hearing that the conflict arose out of a family law matter, inquired as to the status of the family law case. The court was informed that the parties were now using an agency for the visitation exchange and that a hearing was scheduled in family court. The trial court told the parties it did not have jurisdiction to decide the family law issues and that it only had limited jurisdiction over Lee and Best for purposes of the restraining order. The court stated, “I do have jurisdiction over the restraining order. It actually sounds to me like a mutual restraining order would be appropriate at this point in time, and let [the family court] decide what the issues are in terms of the … visitation.… [¶] … [¶] … I will just make mutual restraining orders. I mean, that’s what sounds to be appropriate. Stay away from each other. In terms of any child exchange, that should be done by a third-party supervisor. And the family law court should be deciding the issues of what’s happening with the children.”
After this comment, Best informed the court, “I would like a stay away order from Mr. Lee and my son. I don’t want.…” The court interrupted and said, “I just told you, I don’t have jurisdiction over that.… All I have jurisdiction over is you and him. And at this point in time I’m just going to order that you guys stay away from each other, mutual restraining orders.… That’s it.” The hearing ended and the mutual restraining orders were issued.
Lee has appealed from the order. Best has filed no response and did not file a cross-appeal. In addition, Lee has asked that we either augment the record to include the reporter’s transcript from the September 4, 2009, hearing, or in the alternative, that we take judicial notice of the transcript. His request was deferred by this court on May 10, 2010, for consideration along with the merits of the appeal. Best has filed no opposition to Lee’s request. As a result, we will consider the certified copy of the reporter’s transcript for September 4, 2009, provided by Lee (Exhibit A to the Application for Request to Augment the Record) as part of the record on appeal.
Discussion
We review the trial court’s grant of a restraining order under section 527.6 for abuse of discretion. (Kobey v. Morton (1991) 228 Cal.App.3d 1055, 1060.) We conclude that the trial court abused its discretion when it ordered mutual restraining orders in the absence of a cross-complaint from Best or any evidence to show that Lee was harassing Best.
The intent of section 527.6 is to protect the individual’s right to pursue safety, happiness, and privacy as guaranteed by the California Constitution. (Schraer v. Berkeley Property Owners’ Assn. (1989) 207 Cal.App.3d 719, 729-730.) The statute sets out a special procedure under which a plaintiff may first obtain a temporary restraining order which may remain in effect for no more than 15 days, and may be granted “with or without notice upon an affidavit that, to the satisfaction of the court, shows reasonable proof of harassment of the plaintiff by the defendant, and that great or irreparable harm would result to the plaintiff.” (§ 527.6, subd. (c).) The next step is to allow the defendant to file a response explaining, justifying, or denying the alleged harassment. He or she may file a cross-complaint. A hearing must be held within 15 days to resolve any facts put at issue by the responsive pleadings. “At the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment.” (§ 527.6, subd. (d); see also Russell v. Douvan (2003) 112 Cal.App.4th 399, 402.) “Any willful disobedience” of any temporary restraining order or injunction granted under the statute is punishable as a misdemeanor under Penal Code section 273.6. (§ 527.6, subd. (j).)
The procedures set forth in the harassment statute are expedited, but contain important due-process safeguards. A person charged with harassment must be given a full opportunity to present his or her case. (Byers v. Cathcart (1997) 57 Cal.App.4th 805, 807.) The trial court must receive relevant testimony and find the existence of harassment by “clear and convincing” proof of a “course of conduct” that actually and reasonably caused substantial emotional distress, had “no legitimate purpose, ” and was not a “constitutionally protected activity.” (§ 527.6, subds. (b)(2) & (3), (d).) This expedited and summary proceeding is subject to several limitations designed to confine it to its proper scope. (Byers v. Cathcart, supra, at pp. 811-812.)
The trial court, despite the admirable goal of keeping the peace between two conflicting parties, may not impose mutual restraining orders under section 527.6 without the formality of a cross-complaint. (Kobey v. Morton, supra, 228 Cal.App.3d at pp. 1059-1060.) Best did not file a cross-complaint. He never even requested that any restraining order be made mutual. His oral request at hearing was that the court issue a “stay away order from Mr. Lee and my son.” “The court’s inherent power does not extend so far as to encompass an order without a petition to serve as a vehicle for that order. [Citation.].” (Id. at p. 160.) It was thus an abuse of discretion for the trial court to issue mutual restraining orders without the filing of a cross-complaint by Best. (Nora v. Kaddo (2004) 116 Cal.App.4th 1026, 1029 (Kaddo) [trial court abused its discretion when it granted defendant’s oral request at close of hearing to make injunctive relief mutual in absence of cross-complaint seeking injunctive relief against petitioner].)
As was the case in Kaddo, Lee was subject to the potential criminal consequences of the court’s order without notice or an opportunity to defend and on a silent record. (See Kaddo, supra, 116 Cal.App.4th at p. 1029.) There is no evidence in this record to substantiate the need for a restraining order against Lee. There is nothing in the record to show that Lee ever made any threats toward Best or otherwise harassed Best. The only evidence was Best’s assertion that Lee was violent toward Best’s son and, as the court explained, it did not have jurisdiction over that issue because of the pending family law matter. The court’s order as to Lee must be vacated on both these grounds.
We note that there is a conflict in the record as to the expiration date of the order. The actual orders show a three-year life span, with an expiration date of September 4, 2012. Three years is the maximum permissible duration of a section 527.6 injunction. (§ 527.6, subd. (d); Byers v. Cathcart, supra, 57 Cal.App.4th at p. 810.) The court’s minutes are inconsistent, at one point noting that the restraining order would expire in “one year” (Sept. 4, 2010). In another place, the minutes state that the order will expire on “9-4-2012.” The restraining order after hearing sets the expiration date as September 4, 2012. The law and motion minute order states that the mutual injunctions will remain in effect “for a period of one year from today’s date.” For purposes of appeal, the actual date of expiration is unimportant because we have concluded that the mutual aspect of the order must be vacated and the court will be directed to prepare a new order. At that time, the inconsistencies should be resolved.
DISPOSITION
The mutual restraining order issued by the trial court on September 4, 2008, pursuant to section 527.6 is hereby vacated as to Lee. The trial court is directed to issue a corrected order, eliminating the mutuality of the order and clarifying its expiration date.