Opinion
A160547
06-11-2021
PHILIP FATHER, Plaintiff and Respondent, v. MICHAEL JOSEPH O'DONOGHUE, Defendant and Appellant.
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. CCH-20-582509
POLLAK, P. J.Defendant Michael Joseph O'Donoghue appeals a civil harassment restraining order (Code Civ. Proc., § 527.6), contending that the trial court erred in denying his request to continue the hearing on plaintiff Philip Father's petition seeking such an order. Because the statute states that a person responding to such a petition “shall be entitled, as a matter of course, to one continuance, for a reasonable period, to respond to the petition” (id., subd. (o)), the trial court erred in denying the request. Father contends that the denial of the continuance did not prejudice O'Donoghue by denying him a fair hearing, but the court issued the restraining order without receiving any submission from O'Donoghue or holding any hearing whatsoever. The order must be reversed.
All undesignated statutory citations are to the Code of Civil Procedure.
Factual and Procedural History
Because the procedural error at issue does not implicate the underlying facts, we summarize them very briefly. O'Donghue's brief states-and Father does not dispute-that O'Donoghue lives in a building on McAllister Street in San Francisco, and Father owns the building next door. Father's petition alleges that on January 20, 2020, O'Donoghue physically assaulted him on the sidewalk outside his building, after having on previous occasions threatened Father verbally and vandalized his building.
All dates below are in 2020.
We deny Father's request for judicial notice of a police report regarding the incident as irrelevant to the issues raised by this appeal.
On January 23, Father filed a request for a civil harassment restraining order, and the court set a hearing on February 14. The court issued a temporary restraining order (TRO) set to expire at the time of the hearing. After Father was unable to serve the request and TRO, the court reset the hearing date to February 28 and issued an amended TRO set to expire that day. Father successfully served the petition on February 12.
Sometime before February 23, according to uncontroverted declarations, O'Donoghue retained attorney Daniel Berko to represent him in this matter, as he had represented him previously in other matters. On February 23, Berko learned of a medical problem and was hospitalized. On February 26, O'Donoghue signed a Judicial Council form “Request to Continue Court Hearing” created for use in civil harassment proceedings. (§ 527.6, subds. (p), (x)(1).) In a section headed, “Why does the court date need to be rescheduled?” a box was checked by the text, “I am the restrained party, and this is my first request to reschedule the court date.” On February 26, an attorney who shares an office with Berko, Carlos Jato, tried to file the request but found the clerk's office closed. He tried again on February 27, but the clerk “would not take [the form]” the day before the hearing.
On February 28, Jato specially appeared at the hearing to request a continuance. The court questioned him about Berko's condition and representation of O'Donoghue. The court asked whether “there is good cause, ” implying that good cause was necessary to support the request, and indicated that it suspected Berko had taken the case while knowing that his condition would prevent him from participating. When Jato made a brief aside regarding the merits, the court said, “You're limited as to what you can do so don't start arguing this matter and giving me your opinion at this point. You're only specially appearing. And you're only here for a limited purpose. And that limited purpose is to see if the court will grant a continuance.”
The court stated, “You cannot take a person as your [client], becoming that person's lawyer knowing you're not necessarily available.... [¶]... I'm not so certain at this particular point that there is good cause. And the reason I say I don't think there's good cause is because... you said... if Mr. Berko can't do it, [O'Donoghue]'s going to have to find another lawyer.” Although it is irrelevant to O'Donoghue's absolute right to a continuance, we note that nothing in the record supports the speculation that he retained Berko after Berko was hospitalized. We need not consider whether the denial of a continuance under the facts here would constitute an abuse of discretion if the court had such discretion.
The court stated that it would deny the request for a continuance and treat O'Donoghue as having failed to appear. It then ruled that, based on “the pleadings”-of which the only one on file was the petition-it would issue a restraining order of three years' duration. The court heard no argument on the merits, and issued the order that day.
On March 10, Berko served the restraining order on O'Donoghue, who filed and served a notice of intention to move for a new trial. On March 16, O'Donoghue filed and served a request to modify or terminate the restraining order (§ 527.6, subd. (j)(1)), asking that it be “revoked entirely” based on the erroneous denial of a continuance. Several extensions of the hearing date on this request ensued, ultimately to June 25, but the register of actions does not indicate that a hearing was held that day or when the matter was taken off calendar. On June 29, O'Donoghue timely filed a notice of appeal from the February 28 order.
Father does not dispute that the notice of appeal was timely, but we have an independent duty to confirm that it is. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 667.) Based on the extension of the time for filing a notice of appeal triggered by filing a notice of intention to file a motion for a new trial (Cal. Rules of Court, rule 8.108(c)) and the superior court's general order regarding COVID emergency relief, the notice of appeal was timely.
Discussion
“Section 527.6, subdivision (a)(1) provides that a victim of ‘harassment... may seek a [TRO] and an order after hearing prohibiting the harassment as provided in this section.'... [¶] The legislative history... [states that] section 527.6 ‘ “would establish an expedited procedure for enjoining acts of ‘harassment,' as defined, including the use of [TROs].... [¶] The purpose of the [statute] is to provide quick relief to harassed persons.”' [Citation.] [¶]... [¶] To provide [such] relief, ‘[a] request for the issuance of a [TRO] without notice under this section shall be granted or denied on the same day that the petition is submitted to the court.' [Citation.]... Subject to the provisions governing continuances, a hearing on the petition shall be held ‘[w]ithin 21 days, or, if good cause appears to the court, 25 days from the date that a petition for a [TRO] is granted or denied.' [Citations.] [¶] 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 509, 520-521 (Yost).)
The Legislature “offset the expedited procedures in section 527.6 with safeguards and several provisions limiting the scope of civil harassment restraining orders.” (Yost, supra, 51 Cal.App.5th at p. 521.) One set of safeguards “[en]sures that a person charged with harassment is given an opportunity to present his or her case.” (Id. at p. 522.) Such a person “may file a response that explains, excuses, justifies or denies the alleged harassment” (§ 527.6, subd. (h)) and “ ‘shall be entitled, as a matter of course, to one continuance, for a reasonable period, to respond to the petition.' (§ 527.6, subd. (o).)” (Yost, supra, at p. 522.) “Additional continuances may be obtained upon a showing of good cause....” (Ibid.)
The Legislature added the provision authorizing an initial continuance “as a matter of course” in 2015, after the Second Appellate District published an opinion holding that section 527.6 “[did] not create a mandatory right to a continuance” and affirming a restraining order issued in circumstances like those in the present case. (Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 528 (Freeman).) In Freeman, an appearance attorney requested a continuance because respondent's retained counsel “was otherwise engaged.” (Id. at p. 525.) The trial court denied the request and, “after giving the appearance attorney a short time to prepare, held the hearing.” (Ibid.) It then issued the requested restraining order. (Ibid.) On appeal, the court acknowledged that “some statutes make continuances mandatory” (id. at p. 527) but noted that “[t]he right to a mandatory continuance is noticeably absent from section 527.6, and if the Legislature had intended to create such a right, it easily could have done so” (id. at p. 529).
In 2015, the Legislature did so, adding the subdivision that now states, “The respondent shall be entitled, as a matter of course, to one continuance, for a reasonable period, to respond to the petition.” (§ 527.6, subd. (o).) That provision deprived the trial court of discretion to deny O'Donoghue's first request for a continuance. In denying that request, the court erred.
Two bills amended section 527.6 in 2015; each included subdivision (o). (Stats. 2015, ch. 401, § 1; Stats. 2015, ch. 411, § 1.5.)
While we typically review orders granting or denying continuances for abuse of discretion (Freeman, supra, 192 Cal.App.4th at p. 527), we review de novo the legal question of whether the court had discretion to deny the request (see Bustos v. Global P.E.T., Inc. (2017) 19 Cal.App.5th 558, 563 [court reviews ruling on fees motion for abuse of discretion but “we review the question of whether the trial court applied the proper legal standards de novo”]).
Implicitly recognizing this error, Father seeks affirmance based on the contention that the error was harmless. He relies on the discussion of prejudice in Freeman. In that case, noting that “any error in failing to grant a request for a continuance-whether mandatory or discretionary-is reversible only if it is tantamount to the denial of a fair hearing” (Freeman, supra, 192 Cal.App.4th at pp. 527-528) the Second District held that the respondent had forfeited the issue by failing to argue that she was denied a fair hearing (id. at p. 528). “In any event, ” the court added, “we see nothing in the record to suggest the respondent was denied a fair hearing. She was represented by counsel, who was permitted to review the case file, to adduce evidence, and to cross-examine Freeman.” (Ibid.) In this case, by contrast, the trial court held no hearing, received no evidence, and heard no argument on the merits before granting Father's petition “on the pleadings”-that is, on Father's pleading alone. While the trial court in Freeman permitted appearance counsel to review the file, adduce evidence, and cross-examine the plaintiff (id. at p. 528), the court here admonished the attorney specially appearing, “[D]on't start arguing this matter and giving me your opinion.... [Y]ou're only here... to see if the court will grant a continuance.”
Because the trial court prevented O'Donoghue from filing a responsive pleading, let alone submitting evidence, the record on appeal contains no material from which to evaluate whether he had a colorable defense to the petition. For this reason, appellate courts routinely hold that the total denial of a hearing constitutes reversible error per se. (See, e.g., Adoption of Baby Girl B. (1999) 74 Cal.App.4th 43, 55; see generally 9 Witkin, Cal. Procedure (5th ed. 2020) Appeal, § 456 [collecting cases].) That principle clearly applies here.
Father requests that, if we reverse the order, we direct that a hearing on the merits be held and that the TRO be reinstated until that hearing. O'Donoghue's reply expressly accedes to this request, which we will grant.
Disposition
The civil harassment restraining order is reversed. The temporary restraining order issued on February 7, 2020, is hereby reinstated to remain in effect until 15 days after issuance of the remittitur, unless earlier terminated or extended by order of the superior court. The superior court is directed to conduct a hearing on the petition within 15 days of the issuance of the remittitur unless continued for good cause as permitted by section 527.6. The parties shall bear their respective costs on appeal.
WE CONCUR: STREETER, J., TUCHER, J.