Opinion
A160359
01-04-2022
JUNE KING, Petitioner and Respondent, v. CYNTHIA SUE HERNANDEZ, Respondent and Appellant.
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCV-265570
BURNS, J.
Cynthia Sue Hernandez appeals from the trial court's issuance of a permanent restraining order against her under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) (Elder Abuse Act). Hernandez asserts that the restraining order must be reversed because she was not personally served with the petition, temporary restraining order, and notice of hearing as required by section 15657.03, subdivision (k). June King, the person protected by the restraining order, contends that the court properly authorized an alternative method of service because Hernandez was allegedly evading service. Although we are sympathetic to King's plight, we conclude that section 15657.03, subdivision (k) does not authorize substitute forms of service-even where there is evidence that the alleged abuser has evaded personal service. We therefore reverse.
Undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
King, who was 71 years old at the time, sought a temporary elder abuse restraining order against Hernandez under section 15657.03. The petition alleged that, after Hernandez and King's romantic relationship ended, Hernandez refused to move out of King's house. Hernandez, who was an attorney, had "systematically isolated and harassed" King, including by picking the locks to King's bedroom door and telling her she can't have any privacy; monitoring King's calls and text messages; installing hidden cameras around the house to surveil King; screaming at King's visitors and accusing King of "cheating" on her; threatening to sue King and take all her assets; keeping a pit bull and a Saint Bernard dog that frighten King; and collecting and retaining the rental income on King's rental property. King also alleged that Hernandez owned firearms and told her that she knew everything King was doing and where she was going. As a result, King feared that Hernandez would harm her.
The trial court granted a temporary restraining order that prohibited Hernandez from abusing, intimidating, harassing, or contacting King. The order required that Hernandez stay at least 500 yards from King, her home, her vehicle, and her workplace. The order also required Hernandez to move out of King's home and prohibited Hernandez from owning or possessing firearms. The record indicates that Hernandez did move at some point although it is not clear when she moved.
After the court set a hearing date for a permanent restraining order, King unsuccessfully attempted to personally serve Hernandez. King's attorney notified Hernandez by phone, text message, and email about King's petition, but Hernandez refused to provide her address. After hearing that Hernandez was staying in Petaluma, King hired a process server to stake out the location for three days. Although the process server attempted personal service multiple times, she was unsuccessful. King's counsel also informed the court that she contacted Hernandez's family law attorney, who initially agreed to accept service for Hernandez but later stated that she would not accept service, she had not opened or reviewed the documents, and she had not sent them to Hernandez.
While King was attempting to personally serve Hernandez, Hernandez's family law attorney filed a separate marital dissolution action on her behalf in the Superior Court of the City and County of San Francisco.
In the instant action, King sought and obtained multiple continuances of the hearing date, informing the court that "Hernandez has been evading service[]" and Hernandez "has continued to contact . . . King by text message."
The court subsequently issued an order allowing King to serve Hernandez by mailing copies of the temporary restraining order, petition, and hearing notice to the address listed on Hernandez's State Bar attorney profile, to Hernandez's family law attorney, and to her bankruptcy attorney. King complied with the court's order and filed a proof of service.
The documents mailed to the post office box listed on Hernandez's State Bar profile were returned, indicating that Hernandez did not have any such post office box. King's attorney then discovered that a new address was listed in Hernandez's State Bar profile, but documents mailed to that address were also returned, indicating that the address did not exist.
After a hearing at which Hernandez did not appear, the court issued a permanent restraining order against Hernandez with the same terms as the temporary order, except that the permanent order has a duration of three years.
Over a year later, King effectuated personal service of the temporary restraining order, petition, hearing notice, and permanent restraining order on Hernandez.
Hernandez filed two unopposed motions to augment the appellate record with documents filed in the trial court in the instant action and in the dissolution action, which this court granted. Hernandez subsequently filed a request for judicial notice of a statement of decision and findings and order after a hearing issued in the dissolution action in July and August 2021. King opposed the request, asserting that because Hernandez waited until after King's respondent's brief was due in September 2021 to request judicial notice, King was deprived of an opportunity to address the materials in her brief. For that reason, and because the materials are not necessary to the resolution of this appeal, we deny the request.
DISCUSSION
A.
As an initial matter, we reject King's assertion that the personal service issue is moot because she personally served Hernandez after the permanent restraining order was issued. Hernandez was not served until it was too late for her to appear at the hearing to oppose the issuance of the permanent order. That order remains in effect. Because she may still obtain effective relief (namely, overturning the order), the issue is not moot. (See People v. Peoples (2016) 62 Cal.4th 718, 773.)
B.
Hernandez asserts that the Elder Abuse Act (§ 15657.03, subd. (k)) mandates personal service. Reviewing this statutory interpretation question independently (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387 (American Express)), we agree.
The plain language of section 15657.03, subdivision (k), requires personal service:
Upon the filing of a petition for protective orders under this section, the respondent shall be personally served with a copy of the petition, notice of the hearing or order to show cause, temporary restraining order, if any, and any declarations in support of the petition. Service shall be made at least five days before the hearing. The court may, on motion of the petitioner or on its own motion, shorten the time for service on the respondent.
Here, it is undisputed that King did not personally serve Hernandez with the requisite documents prior to the hearing on the permanent restraining order. (See Cal. Rules of Court, rule 3.1160(c) [with respect to requests for protective orders under Welfare and Institutions Code section 15657.03, "[s]ervice must be made in the manner provided by law for personal service of summons in civil actions"]; Code Civ. Proc., § 415.10 ["A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served."]; see also American Express, supra, 199 Cal.App.4th at p. 389 ["A defendant may also be 'personally' served by delivering a copy of the summons and complaint to an agent authorized to accept service on behalf of that defendant," citing Code Civ. Proc., § 416.90.].)
The Elder Abuse Act does not expressly allow alternative means of service at this stage of the process. (See § 15657.03, subd. (k).) But at subsequent stages, it does. Section 15657.03, subdivision (o), provides for alternative methods of service or notice with respect to a permanent restraining order issued after a hearing. Section 15657.03, subdivision (o)(2), provides that once the respondent is personally served with the temporary restraining order and notice of hearing, the permanent order may be served by mail if the respondent failed to appear at the hearing on the permanent order and the terms and conditions of that order are substantively identical to those of the temporary order. Alternatively, if the respondent personally appeared in court and thereby received actual notice of the permanent order from the court, "no additional proof of service is required for enforcement of the order." (§ 15657.03, subd. (o)(1).) The fact that the Legislature allowed alternative methods of service at these later stages, but not for the initial notice requirements, indicates a deliberate omission.
King contends that the trial court's decision to permit service by mail was justified by analogy to the service requirements for restraining orders issued under the Domestic Violence Prevent Act (Fam. Code, § 6200 et seq.), which allows alternative methods of service where "there is reason to believe that the restrained party is evading service." (Fam. Code, § 6340, subd. (a)(2)(A).) However, this provision simply underscores the point that the Legislature knows how to authorize substitute service methods when it desires to do so.
We must respect the Legislature's choice. In Searles v. Archangel (2021) 60 Cal.App.5th 43, 51-52 (Searles), the court considered a virtually identical personal service requirement in former Code of Civil Procedure section 527.6, which stated that the respondent in a civil harassment restraining order case "shall be personally served" with the petition, temporary restraining order, and hearing notice. (Former Code Civ. Proc., § 527.6, subd. (m), Stats. 2019, ch. 294, § 1; see also Cal. Rules of Court, rule 3.1160(a), (c) [applying same personal service requirement to cases under Code of Civil Procedure section 527.6 and Welfare and Institutions Code section 15657.03].) The petitioner alleged she was unable to personally serve the respondent because he was homeless and was avoiding the area, but the trial court denied her motion to serve him by alternative means and eventually dismissed the petition without prejudice. (Searles, supra, 60 Cal.App.5th at pp. 46-48.) The court of appeal affirmed, concluding that the statute "requires personal service of the petition, TRO and notice of hearing in civil harassment restraining order cases and does not permit the court to approve alternative methods of service." (Searles, supra, at p. 51.) The same is true here.
More recent legislation reinforces our conclusion. Shortly after Searles, the Legislature amended Code of Civil Procedure section 527.6 to provide an exception allowing alternative means of service. (See Assem. Bill No. 1143 (2020-2021 Reg. Sess.), Stats. 2021, ch. 156, § 1 [adding a new subdivision (m)(2) to Code of Civil Procedure section 527.6, effective January 1, 2022].) At the same time, the Legislature amended the Elder Abuse Act but made no change to its personal service requirement. (Assem. Bill No. 1243 (2020-2021 Reg. Sess.), Stats. 2021, ch. 273, §§ 2-3 (effective January 1, 2022).) The Legislature was presumably aware that the virtually identical personal service requirement in former Code of Civil Procedure section 527.6 was construed in Searles to preclude a court from authorizing substitute forms of service, and it was aware of its decision to amend that requirement to allow an exception to personal service. (See In re R.G. (2019) 35 Cal.App.5th 141, 146 [courts presume the Legislature"' was aware of existing related laws' "]; see also In re Hoze (2021) 61 Cal.App.5th 309, 317.) Yet the Legislature chose to reenact the personal service requirement in the Elder Abuse Act without change.
The trial court and King understandably endeavored to respond to the circumstances here-circumstances suggesting that Hernandez was purposefully evading service-through other reasonable methods of service. We note that Hernandez does not deny that she evaded service; instead, she artfully states that King did not produce "any substantive evidence" of evasion, and she criticizes King for not trying harder to serve her. The bottom line, however, is that it is up to the Legislature to address the difficulty presented by a respondent who evades service. Courts may not re-write the statute. (See Searles, supra, 60 Cal.App.5th at p. 54.)
Because the statutory requirement of personal service was not met, we must reverse the permanent restraining order. (See Severson & Werson, P.C. v. Sepehry-Fard (2019) 37 Cal.App.5th 938, 950-951 [failure to provide statutorily required notice of restraining order proceedings was structural error requiring reversal regardless of prejudice]; see also American Express, supra, 199 Cal.App.4th at p. 387.) In light of this resolution, we need not reach Hernandez's contention that her due process rights were violated. (But see Miller v. Superior Court (1961) 195 Cal.App.2d 779, 785-786 ["The provisions of law permitting a personal judgment to be taken by constructive service of summons against a resident who cannot, after due diligence, be found within the state, or who conceals himself to avoid the service of summons is not violative of constitutional due process," italics omitted].) Neither do we resolve Hernandez's argument that the permanent restraining order was factually unsupported.
C.
We reject Hernandez's argument that the trial court lacked jurisdiction to issue the permanent restraining order. She claims that the Superior Court in San Francisco (where she brought the dissolution action) has exclusive jurisdiction to divide community property. The Elder Abuse Act restraining order does not involve division of community property. (See § 15657.03.)
DISPOSITION
The permanent restraining order is reversed. The temporary restraining order is reinstated upon the issuance of the remittitur and will remain in effect for 21 days to permit further proceedings on King's petition for a permanent restraining order, to the extent she wishes to pursue it. Each party shall bear her own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
We concur: JACKSON, P.J. SIMONS, J.