Opinion
E068703
12-10-2018
M.A., Plaintiff and Respondent, v. M.M., Defendant and Appellant.
M.M., in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIC1710281) OPINION APPEAL from the Superior Court of Riverside County. Tamara L. Wagner, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Dismissed as moot. M.M., in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant M.M. (defendant) appeals the grant of a civil harassment restraining order (Code Civ. Proc., § 527.6) ordering her to keep 100 yards away from plaintiff and respondent M.A., M.A.'s husband W.L. (husband) and M.A.'s daughter, K.M. M.A. had been in a relationship with defendant's brother, who was K.M.'s father, but he had died. Defendant and M.A. maintained a relationship after defendant's brother died and defendant visited with K.M. However, suddenly defendant sent threatening text messages to M.A. stating she was going to kill her, threatening to call child protective services (CPS) on M.A., and warning M.A. not to "mess with" defendant. M.A. obtained a temporary restraining order and the day it was served on defendant, CPS arrived at M.A.'s home to check on K.M. Defendant contacted M.A. twice after the TRO was granted. M.A. was granted a permanent restraining order after a hearing; it expired on June 27, 2018.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Defendant insists the trial court erred by granting the restraining order because she was involuntary intoxicated on the drug Prednisone when she sent the threatening text messages to M.A. and there was no evidence the threatening behavior would continue. M.A. has not filed a response. We conclude since the restraining order expired on June 27, 2018, and there is no information that M.A. renewed the order, the appeal is moot.
PROCEDURAL AND FACTUAL HISTORY
On June 8, 2017, M.A. filed a CH-100 form in the trial court seeking a restraining order against defendant. She sought to have the order keep defendant away from her, husband and K.M. M.A. stated the following in support of the CH-100: "[Defendant] has threatened harm to me, she states she [is] following me, 'will make my life hell,' she states she will call CPS on me and she has called my mother and made a scene at my [K.M.]'s dance studio." There were no current court cases involving M.A. and defendant, and no prior restraining orders. Defendant harassed M.A. and made threats by telephone and text messages on May 24, 2017, and June 6, 2017.
Defendant attached the CH-100 form to the opening brief as it was not included in the clerk's transcript but did not request that we take judicial notice of the document. We will take judicial notice on our own motion.
M.A. provided "[Defendant] sent threatening text messages and left a threatening voicemail on [M.A.'s] cell phone. She will follow me, my life is over, she'll kill me and she will call CPS on me. She will make my life 'hell' she wants me dead." M.A. was not physically harmed, but stated "I am scared. I have a heart condition and her threats sent me into an SVT episode because of the stress. I am also 34 weeks pregnant. I am anxious the stress will send me into labor early." On other occasions, defendant sent her "drunken mean spirited texts."
M.A. sought an order keeping defendant away from M.A., M.A.'s work, K.M.'s school and dance studio, and husband's work. M.A. needed immediate orders because "I'm afraid it will force her to physically come after me. She already stated she doesn't care if I have a restraining order she will still follow me and my 'life will be over.' She has been previously arrested for domestic abuse/battery in the past (not against me)." M.A. signed the form under penalty of perjury. A temporary restraining order was granted on June 8, 2017.
The matter was heard on June 27, 2017. M.A. and defendant were present in court. M.A. affirmed that everything in her original request was true and accurate to the best of her knowledge. M.A. added that she had a voicemail message threatening her, which was not included on the CH-100. M.A. advised the trial court that the message from defendant stated " 'If you mess with me again, I'll kill you. I don't care if you have a restraining order. Do you hear me? I will kill you.' "
It is not clear from the record when defendant left the voicemail message.
M.A. stated that since defendant's brother died, they had an estranged relationship. M.A. had previously ignored "drunken" messages from her. However, she got concerned when she got the messages from defendant threatening to kill her and that she wanted her dead; that M.A. was not keeping the house clean; and she was going to call CPS. M.A. confirmed that on the day defendant was served with the temporary restraining order, CPS came to M.A.'s house to investigate the cleanliness of her home. They found the home to be safe. K.M. was upset for two days after the social worker came to the house. M.A. also stated that defendant was not stable, she had a history of violence and she had been previously "arrested for substance abuse." She feared defendant would have K.M. taken away and then kill her.
M.A. was pregnant. She was concerned the stress of worrying that defendant was going to take K.M. or hurt her would cause her to go into early labor. M.A. also mentioned that defendant filed a response to the request for a restraining order in which she admitted her medication made her have "rages."
According to the Riverside Superior Court register of actions defendant's response was filed on June 26, 2017; however, it has not been made part of the record on appeal.
M.A. explained she had printed out the text messages from defendant and they were available for review by the trial court. Further, that defendant contacted her on two occasions after the temporary restraining order was issued. The first time defendant "vaguely" apologized and asked her to drop the restraining order; the second time "was something about the devil."
The trial court stated it had reviewed defendant's response and defendant's amendment to the response. Defendant advised the trial court that she suffered from Lyme disease and had a heart condition. Defendant also referred to the fact she had documentation of three years of correspondence with M.A., all of which was loving except for one 2-hour period. That correspondence was sent because she was having an extreme reaction to "Prednisone." She had proof of the allergic reaction. Defendant brought medical documents; she had character statements from the government; she brought her resume showing she had been a professional executive for 20 years and would not risk her career by hurting M.A..
The amended response was also not made part of the record on appeal.
Defendant insisted she would never hurt K.M., who was her "precious niece." Defendant advised the trial court that M.A. and defendant's brother had never been married but M.A. was allowed to remain in the home owned by her brother after his death. M.A. "quickly" brought husband into the home "and now they're married." The home was dilapidated. Defendant's mother was the executor of defendant's brother's estate.
The trial court interrupted defendant and stated, "I have read everything that's in your response, your amended response, and the original request. All of those underlying issues really are side issues that you are pointing out. [¶] What I want you to focus on is the threat. In your response, you admit to it."
Defendant agreed she had made the threat to M.A. but it was because she was having an adverse reaction to Prednisone. She insisted it was not in her nature to make such statements. The character letters supported she was not that type of person.
The trial court then questioned M.A. as to why she had violated the temporary restraining order when she was ordered to have no contact with M.A.. Defendant responded, "We're family. And as far as I'm concerned, you know—I mean that's how I see it. And also, let me point out—these threats, she filed a restraining order when I sent her a text message that said we met with an estate attorney and if you don't clean up the home, a property management company will be obtained at your expense. And that's when she filed the restraining order. It was 15 days after the threats."
Defendant stated she would have no further contact with M.A.. She was concerned that she worked in the financial industry and the issuance of a restraining order against her would impact her career. Defendant only wanted to see K.M. four times each year. In mediation prior to appearing in court, M.A. had refused that request even though the visits would be supervised. Defendant denied that she was "a drunk." She took numerous medications because of her illnesses. She understood that M.A. was hurt by the messages and apologized. She just asked that the trial court consider her career and the impact of a restraining order on her employment.
The trial court stated the character statements were not relevant. Further, since the parties were unable to resolve the issue during mediation, it must decide the issue. M.A. made one further statement that although defendant claimed not to be a "drunk," she had prior driving under the influence convictions. Defendant responded, "I said I'm not a drunk, [M.A.]."
Defendant further provided that her mother was the executor of her brother's estate and defendant usually handled things for her mother. M.A. advised the trial court she had a relationship with defendant's mother and could work with her.
The trial court found, "All right. Based on the testimony as well as the declarations as well as the response with the admission, Court is finding clear and convincing evidence there was a credible threat of violence, a knowing and willful statement of course of conduct. Clearly the petitioner is in fear as she is standing in front of me just testifying. [¶] Court is granting the restraining order for a period of one year." In response, defendant stated "Well, thank you, [M.A.]. The house is being sold."
After advising the trial court that she did not own a gun, M.M. stated, "Your honor, then [M.A.] needs to get out of my property. It's my family's property." The trial court advised defendant "This is not the venue for that." Defendant advised the trial court that M.A. would be evicted. She also stated, "She killed my brother."
The restraining order was issued on June 27, 2017, and was to be effective for one year, expiring on June 27, 2018. Defendant was ordered to stay at least 100 yards away from M.A., K.M. and husband. She was not to "[h]arass, intimidate, molest, attack, strike, stalk, threaten, assault (sexually or otherwise), hit, abuse, destroy personal property of, or disturb the peace of" the aforementioned three persons.
On July 11, 2017, defendant filed her notice of appeal. With the notice of appeal, defendant provided five exhibits that she acknowledged were not admitted in the trial court. These included character letters, medical records, text messages purporting to be between M.A. and defendant, and two other letters.
DISCUSSION
Based on the record before this court, the appeal is moot.
M.A. did not file a response in this court. However, the court may examine mootness on its own motion. (City of Hollister v. Monterey Insurance Company (2008) 165 Cal.App.4th 455, 479.) --------
"[Former s]ection 527.6, subdivision (a)(1) provides that '[a] person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an order after hearing prohibiting harassment as provided in this section.' Section 527.6, subdivision (d) provides that a temporary restraining order may issue, with or without notice, based on the petitioner's declaration if the court finds it is reasonable proof of harassment of the petitioner by the respondent, and that great or irreparable harm may result to the petitioner if the restraining order is not issued. [¶] Within 21 days, or if good cause appears, within 25 days, from the date of the petition for a temporary restraining order is granted or denied, the court shall hold a hearing on the petition. [Citation.] 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 order shall issue prohibiting the harassment.' [Citation.] An injunction restraining future conduct is only authorized when it appears that harassment is likely to recur in the future." (Harris v. Stampolis (2016) 248 Cal.App.4th 484, 496.)
"In the discretion of the court, an order issued after notice and hearing under this section may have a duration of no more than five years, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. The order may be renewed, upon the request of a party, for a duration of no more than five additional years, without a showing of any further harassment since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. A request for renewal may be brought any time within the three months before the order expires." (§ 527.6, subd. (j)(1).)
We note that the restraining order here expired on June 27, 2018. "[A] case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief." (Lincoln Place Tenants Association v. City of Los Angeles (2007) 155 Cal.App.4th 425, 454.) " 'If relief granted by the trial court is temporal, and if the relief granted expires before an appeal can be heard, then an appeal by the adverse party is moot.' " (City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1079.)
" 'It is well settled that an appellate court will decide only actual controversies and that a live appeal may be rendered moot by events occurring after the notice of appeal was filed. We will not render opinions on moot questions or abstract propositions, or declare principles of law which cannot affect the matter at issue on appeal.' " (Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 866.)
A court has discretionary authority to decide moot issues when "an action involves a matter of continuing public interest that is likely to recur" or "when, despite the happening of a subsequent event, material questions remain for the court's determination." (Building a Better Redondo, Inc. v. City of Redondo Beach, supra, 203 Cal.App.4th at p. 868.) Here, the issues on appeal are "fact-specific issues that are unlikely to recur and thus does not justify our exercise of discretion to resolve moot questions." (Id. at p. 867.) This case does not involve an issue of public interest and there are no material questions that remain.
A third discretionary exception allows a court to address a moot issue when the same controversy is likely to recur between the parties. (City of Hollister v. Monterey Insurance Company, supra, 165 Cal.App.4th at p. 480.) This case does not fall within the above-mentioned discretionary exception because there is nothing in the record before this court that M.A. sought an extension of the restraining order. (See Harris, supra, 248 Cal.App.4th at pp. 495-496 [since the restraining order was renewed, the appeal of the original restraining order was not moot because a finding that insufficient evidence supported the harassment in the original restraining order could provide the defendant relief on the renewal].)
In the lower court, defendant was concerned that the issuance of the restraining order would have a negative impact on her employment. While it is true that seeking to clear one's name in a criminal case can serve as an exception permitting review of a moot appeal, we are unaware of any authority that provides a similar exception for civil cases. (See People v. DeLong (2002) 101 Cal.App.4th 482, 484, 486-492 [criminal defendant's appeal not moot because she was entitled to an opportunity to clear her name and "rid herself of the stigma of criminality"].)
The issue on appeal has been rendered moot by the expiration of the restraining order and nothing in the record supports M.A. sought a renewal. As such, since we cannot provide defendant effective relief, we dismiss the appeal as moot.
DISPOSITION
The appeal is dismissed as moot. Appellant is to bear her own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: SLOUGH
J. FIELDS
J.