Opinion
NOT TO BE PUBLISHED
APPEAL of an order of the Superior Court of Los Angeles County. Gerald Rosenberg, Judge. Los Angeles County Super. Ct. No. SS016352ed.
Spas Muleshkov, in pro. per., for Defendant and Appellant.
No appearance for Respondent.
ZELON, J.
Spas Muleshkov (Muleshkov) appeals the denial of his request for a restraining order against respondent Moss Krivin (Krivin). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Krivin and Muleshkov are former business acquaintances whose relationship began to deteriorate during the course of their business dealings. They had been feuding over these matters for 10 months prior to the time of the proceedings in the trial court.
On January 7, 2008, Krivin petitioned for a restraining order under Code of Civil
Procedure section 527.6 against Muleshkov, alleging threats and harassment The petition alleged that Muleshkov had been making numerous telephonic threats to Krivin, and that an L.A.P.D. detective had ordered Muleshkov several times to stop contacting Krivin. Despite the orders from the L.A.P.D., Muleshkov continued to leave obscene and profane telephone messages on Krivin’s answering machine. Muleshkov did not file a response or cross-complaint in opposition to the petition.
All subsequent statutory references are to the Code of Civil Procedure unless otherwise indicated.
The trial court found that Krivin was entitled to a civil harassment restraining order against Muleshkov. At the close of the hearing, Muleshkov made an oral motion for a mutual restraining order. The court denied the motion because Muleshkov had not properly moved for such an order.
A section 527.6 order is an appealable order. Muleshkov objects on appeal, however, only to the denial of mutual relief. He claims that the trial court erred as a matter of law in denying his motion based on evidence that the denial unfairly restrains him from pursuing certain business projects, and that he is being provoked by third parties in connection with Krivin.
Section 904.1, subdivision (a)(6).
The denial of appellant’s oral motion is subject to the abuse of discretion standard of review on appeal. (Kobey v. Morton (1991) 228 Cal.App.3d 1055, 1059-1060 (Kobey).)
DISCUSSION
Section 527.6 permits a person who has suffered harassment to seek a temporary restraining order and injunction prohibiting the harassment. (§ 527.6, subd. (a).) When a party seeks such an injunction, the court “must hold a hearing, receive relevant testimony, and issue the injunction if it finds, by clear and convincing evidence, that harassment exists. [Citation.] Any willful disobedience of such an injunction is punishable as a misdemeanor. [Citation.]” (Nora v. Kaddo (2004) 116 Cal.App.4th 1026, 1028.)
When an injunction is sought, the defendant may file a response that “explains, excuses, justifies, or denies” the alleged harassment, or may file a cross-complaint. (§ 527.6, subd. (d).) A response by defendant must be filed and delivered to the plaintiff, or the plaintiff's attorney, “no later than 48 hours before the hearing.” (Cal. Rules of Court, rule 3.1152(d).)
The harassment statute was enacted “‘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 (Schraer).) With regard to the issuance of mutual restraining orders, section 527.6 also “calls for the formality of a cross-complaint before the court imposes on the plaintiff ‘what approximates a permanent injunction.’ 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.” (Kobey, supra, 229 Cal.App.3d at p. 1060.)
The procedures set forth in section 527.6 provide important due process protections. “[T]he procedure for issuance of an injunction prohibiting harassment is self-contained. There is no full trial on the merits to follow the issuance of the injunction after the hearing....” (Schraer, supra, 207 Cal.App.3d at pp. 732-733.) “That hearing [provided by § 527.6 subd. (d)] provides the only forum the defendant in a harassment proceeding will have to present his or her case. To limit a defendant’s right to present evidence and cross-examine as respondents would have us do would run the 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.” (Ibid.) It is an abuse of discretion to issue mutual restraining orders based upon a defendant’s oral request for such relief when the defendant had “failed to file a cross-complaint seeking injunctive relief against [plaintiff], and presented no evidence of harassment....” (Nora v. Kaddo, supra, at p. 1029; see also Kobey, supra, at pp. 1059-1060 [abuse of discretion and violation of due process to grant mutual injunctive relief over petitioner’s objection that respondent had not filed a cross-complaint].)
Here, as in Nora and Kobey, Muleshkov failed to file a cross-complaint seeking injunctive relief. The oral motion at the hearing gave Krivin neither adequate notice nor an opportunity to defend. Muleshkov’s claims concerning the evidence need not be resolved as he failed to comply with the basic requirements for seeking an order. The trial court correctly determined that Muleshkov is not entitled to mutual relief. Accordingly, we affirm.
DISPOSITION
The order is affirmed. Appellant is to bear his costs on appeal.
We concur: PERLUSS, P. J. WOODS, J.