Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, John M. Watson, Judge. Reversed and remanded with instructions, Super. Ct. No. 06WL04624.
Callahan, McCune & Willis and Christopher J. Zopatti for Defendant and Appellant.
Megan N. Ellisor in pro. per., for Plaintiff and Respondent.
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OPINION
SILLS, P. J.
This case is an appeal from the granting of a personal restraining order based on the fact that the defendant, a 62-year old psychologist in the process of retiring from his practice, applied to be a docent at an art museum. Which is to say, it is not your typical domestic violence restraining order case.
Specifically, in August of 2006, plaintiff Megan Noelle Ellisor filed a request for orders to stop harassment, directed at Dr. Michael J. Kondas, case number 06WL04624 (the one giving rise to this appeal).
According to Ellisor’s application, she had been referred to Dr. Kondas for marriage counseling. Item 4 on Ellisor’s application form asked why she was filing for such an order, and Ellisor’s answer referred to “Case # 06WL02443.” Item 6c. on the application form asked whether the target of the restraining order (Dr. Kondas) had committed any acts or threatened to commit any actions of violence against the applicant, and Ellisor again made specific reference to the earlier case: “See case # 06WL02443 Also violated verbal agreement -- see attached letter” was her response. The attached letter was headed “‘Ch-100, item 6-Describe Harassment’” and began with the words “Per case # 06WL02443.” The rest of the letter described Ellisor’s version of events of May 2, 2006. It stated that “in a private residence in Leisure World” Dr. Kondas had hypnotized Ellisor “without warning,” “asked sexual questions,” “removed his dress slacks during these questionings revealing himself in boxer shorts” and asked that she lay down on the bed in a bedroom where there was a video camera. Ellisor left immediately.
The letter went on to refer to the “previous restraining order hearing” (that is, case number 06WL02443), where the judge denied a restraining order “based on,” an agreement by Dr. Kondas to “stay away without an order in place.”
The events giving rise to the second case, 06WL04624 (the one before us) were, according to Ellisor’s request for restraining orders to stop harassment here, these: Dr. Kondas had “violated [the] verbal agreement” that had terminated the first case, 06WL02443, by applying to be a docent at the Long Beach Museum of Art. Dr. Kondas’ declaration in opposition to the order asserted that he had “recently decided to retire” and, being a member of “numerous museums,” decided to offer his services as a docent to the Long Beach Museum of Art, having “completely forgotten that Ms. Elliser [sic] was an employee.” When he was served with the papers for the restraining order in the second case, he “immediately contacted the museum and withdrew [his] application to be a docent and a member.”
Ellisor’s application was scheduled for September 8, 2006. A week before, Dr. Kondas’ attorney filed a request that the court take judicial notice of “the complete file in” the first case, “including” Dr. Kondas’ answer and declaration, plus the declaration of Lucia Kondas.”
When the matter was called by Judge Watson on September 8, he acknowledged the request to take judicial notice, stated it “seemed appropriate,” but then declined to do so because, at that precise moment, the file was not before him. (Here are his comments verbatim: “The Court: I am always thrilled to read declarations from attorneys because they always help so much, and this one does. It is a request to take judicial notice but, unfortunately, it seemed appropriate, but at the moment I don’t have a file so it is pretty hard for me to do that.”) After a few moments of discussion between the judge, Ellisor representing herself in pro. per., and Dr. Kondas’ attorney, the judge announced it was his intention to issue the requested order.
Dr. Kondas’ attorney then reiterated points made in his opposition -- mainly that the application to be a docent was “completely inadvertent” and had not made any attempt to “annoy” Ellisor. The judge answered with a hypothetical wager: If there was only an “informal order,” and he violated it, he would receive almost a year in the county jail. Dr. Kondas’ attorney said he “absolutely” would “agree to that,” but the judge was not dissuaded and granted the request for permanent injunction.
Dr. Kondas has taken this appeal from the ensuing order, arguing primarily that the trial judge erred in not taking judicial notice of the earlier case.
The point is well taken. Ellisor has presented no argument that the court had any leeway, under the judicial notice sections of the Evidence Code (basically, sections 451, 452 and 453) not to take judicial notice of the earlier case. Indeed, her own application in 06WL04624 explicitly incorporates allegations made in 06WL02443. Under such circumstances, we are tempted to say that even if the standard for whether to take judicial notice were discretionary (which it is not), it would be an abuse of discretion not to take judicial notice of the file from the earlier request given its centrality to the later request.
Evidence Code section 453 is mandatory, not discretionary, conditioned on the party requesting the notice giving the “adverse party sufficient notice of the request” and furnishing the court with “sufficient information to enable it to take judicial notice of the matter.” Both of those conditions were met in the written request to take judicial notice filed September 1.
Rather, Ellisor posits that the trial judge simply made a harmless error: “[H]ad he read all of the prior case his ruling would have remained the same.”
The problem is, we really cannot say that the ruling would indeed have been the same. Quite the contrary in fact. No one would seriously contend that applying to be a docent at an art museum would, in a vacuum, justify a personal restraining order. Dr. Kondas’ application could only be an act of annoyance toward Ellisor given a pre-existing context, and that context is only fully explicated in the earlier file. Suppose, for example and for sake of argument, that the earlier file were to reveal that there was no basis for a restraining order. Given that the later file certainly set forth no basis by itself for a restraining order, such an order could thus not be legitimately issued in the second case without being based on what the earlier file revealed.
We note in the same vein that the statutory standard for restraining orders set forth in section 527.6, subdivision (d) of the Code of Civil Procedure makes the granting of a restraining order a “shall” -- that is, mandatory -- as long as the judge finds “clear and convincing evidence that unlawful harassment exists.” Here is the relevant language from that provision: “Within 15 days, or, if good cause appears to the court, 22 days from the date the temporary restraining order is issued, a hearing shall be held on the petition for the injunction. The defendant may file a response that explains, excuses, justifies or denies the alleged harassment or may file a cross-complaint under this section. 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.”
That is, if there is going to be “clear and convincing evidence” justifying a restraining order in this case, it will be found in the events described in the earlier case. The refusal to take judicial notice of the file in that earlier case in this proceeding therefore was not harmless error.
The restraining order is reversed, with instructions to the court to take judicial notice of the complete file in the earlier case, namely 06WL02443. We need only add that the fact a file may not be conveniently on hand is certainly not a reason to refuse to take judicial notice when otherwise required. Matters can be recessed while a clerk is directed to locate any required file not immediately on hand. Given the interlocutory nature of this disposition of the appeal, in the interests of justice each side will bear its own costs on appeal.
WE CONCUR: RYLAARSDAM, J., IKOLA, J.