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Rivera v. Ayoub

California Court of Appeals, Second District, Fourth Division
Mar 17, 2008
No. B195844 (Cal. Ct. App. Mar. 17, 2008)

Opinion


MARIA E. RIVERA, Plaintiff and Respondent, v. NAIL AYOUB, Defendant and Appellant. B195844 California Court of Appeal, Second District, Fourth Division March 17, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. GQ003987 Robert A. Schnider, Judge.

Nail Ayoub, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

WILLHITE, Acting P. J.

Defendant Nail Ayoub appeals from the trial court’s issuance of a domestic violence protective order (Fam. Code, § 6340, subd. (a)) prohibiting him from contacting plaintiff Maria Rivera and from coming within 100 yards of her person, residence, work, and vehicle. We affirm.

BACKGROUND

Ayoub is Rivera’s former boyfriend. In August 2006, Rivera applied for a temporary restraining order against him, alleging that he had been harassing her in an attempt to get back together. In a declaration filed in support of her application, Rivera stated that while she was living at her parents’ house, Ayoub persistently called her in the middle of the night. He also repeatedly called her on her cell phone. In one call, he threatened to “kick [her] ass.” In another, he told her, “It’s not going to end when you want it to.”

Rivera moved from her parents’ home, but Ayoub discovered her new address. One day he showed up there and would not leave. He also began to follow her to work and choir practice. She changed her cell phone number, but somehow he learned it and called her. After she changed the number again, someone at her cell phone company told her that a man who knew her pin number and personal information had called and wanted her new number. The day before applying for the restraining order, Rivera saw Ayoub following her in his car. He passed her and made the gesture of a gun pointing at her. Rivera believed Ayoub was capable of hurting her. She “just want[ed] him to leave [her] alone.”

The trial court issued a temporary restraining order against Ayoub. Following reassignment of the case to another judge, the court scheduled a hearing to consider issuing a domestic violence protective order for September 11, 2006. On that date, Ayoub appeared in pro. per. The court explained to him that Rivera had gone to the wrong courthouse, but had called the court and said she was on her way. Ayoub requested a continuance of the hearing because he needed to attend to his father who was hospitalized with cancer. The court granted the request, and continued the case to October 6, 2006.

On September 22, 2006, Ayoub filed a motion to quash service of summons. He attached declarations by his brother and himself stating that the brother, not Ayoub, was the person served with Rivera’s application for a protective order.

On October 6, 2006, Ayoub again appeared, but Rivera did not. The court explained to Ayoub that Rivera had erroneously been told by the court clerk that she could appear telephonically. Therefore, the court continued the case to November 1, 2006, to permit Rivera to personally appear.

On the hearing date of November 1, 2006, both Rivera and Ayoub appeared in pro. per. The court denied Ayoub’s motion to quash, ruling that although service was defective, Ayoub had made a general appearance on September 11 when he requested a continuance. Therefore, he had submitted to the court’s jurisdiction before filing his motion to quash. Further, he had received a copy of Rivera’s application for a protective order and thus had actual notice of the proceeding.

In considering whether to issue a protective order, the court first received into evidence, without objection, the declaration Rivera filed in support of her application for a temporary restraining order. Rivera then called her brother, Francisco Rivera, as a witness. Francisco testified that he had seen Ayoub driving past his parents’ house more than ten times. Francisco had also received several telephone calls there from Ayoub asking to speak to Rivera, the most recent one occurring the day before the hearing.

Next, Ayoub testified in his defense. According to Ayoub, he had “been with” Rivera on and off for the past six years. Early in the summer of 2006, Rivera had told him that she did not want to be with him. Her decision was fine with him. However, she owed him money and said she wanted to repay him. Therefore, Ayoub called her a few times to ask about payment. He denied threatening Rivera and denied calling her new cell phone number. He admitted he had called Rivera’s parents’ house the day before the hearing, but stated that he did so only because his father’s condition had suddenly worsened and only to ask Rivera’s brother Francisco to tell Rivera that the hearing might be postponed. Ayoub stated that he had received two calls from someone who said that he would kill Ayoub if he did not leave Rivera alone.

In rebuttal, Rivera testified that she did not owe Ayoub money and never gave him cause to contact her. The trial court found Rivera’s testimony in court and in her declaration to be credible. Concluding that Ayoub had engaged in persistent unwanted contact with Rivera, the court issued a protective order prohibiting him from harassing or contacting Rivera, and directing him to stay at least 100 yards away from her and from her home, job, and vehicle. The order expires on October 31, 2008. Ayoub appeals.

DISCUSSION

Denial of Motion to Quash

Ayoub contends that the trial court erred in denying his motion to quash service of summons. We disagree.

An appearance in which a party requests a continuance is a general appearance. (366-388 Geary St., L.P. v. Superior Court (1990) 219 Cal.App.3d 1186, 1194, fn. 2 (366-388 Geary); 2 Witkin, Cal. Procedure (4th ed. 1996) Jurisdiction, § 202, p. 768.) “[A] general appearance is the equivalent of personal service of summons for jurisdictional purposes, dispensing with any need to effect such service and curing defective service or other lack of notice.” (366-388 Geary, supra, 219 Cal.App.3d at p. 1193.)

In the instant case, the hearing on Rivera’s application for a protective order was scheduled for September 11, 2006. On that date, Ayoub appeared and requested a continuance, which the court granted. Thus, Ayoub’s appearance on September 11 was a general appearance that cured any defect in service of process. Because he filed his motion to quash service of summons on September 22, after his September 11 general appearance, the motion was untimely. Therefore, the trial court properly denied the motion.

Continuances

Ayoub contends that the trial court should not have allowed the case to proceed after Rivera failed to appear on September 11 and October 6, 2006. Ayoub has no cause to complain about the continuance of September 11. On that date, the trial court explained to Ayoub that Rivera had gone to the wrong courthouse, but that she had called the court and said she was on her way. Nonetheless, Ayoub requested and received a continuance to attend to his father. He cannot be heard to complain that his own continuance request was granted.

On October 6, 2006, the court explained to Ayoub that Rivera did not appear because the court clerk had erroneously informed her that she could appear telephonically. The court continued the case to November 1, 2006, because, “based on a misunderstanding [created] by the court, [Rivera] was released from appearance.” Under the circumstances, the court did not abuse its discretion in continuing the hearing on Rivera’s application to November 1.

Sufficiency of the Evidence

Ayoub contends in substance that the trial court abused its discretion in granting the protective order because the evidence does not support it. The trial court, however, found Rivera’s testimony to be credible. The court further found that Ayoub had engaged in repeated unwelcome contact with Rivera. Under the relevant statutes (Fam. Code, §§ 6340, subd. (a), 6320, 6203, and 6211), persistent unwelcome contact, including telephonic contact, constitutes “domestic violence” as statutorily defined. Such conduct may be enjoined by a domestic violence protective order. (Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1291, fn. 24.) Here, Rivera’s testimony, as given in court and as stated in her declaration, demonstrated that Ayoub had engaged in persistent unwanted contact. The court did not abuse its discretion in granting a protective order prohibiting that contact.

DISPOSITION

The judgment is affirmed.

We concur: MANELLA, J., SUZUKAWA, J.


Summaries of

Rivera v. Ayoub

California Court of Appeals, Second District, Fourth Division
Mar 17, 2008
No. B195844 (Cal. Ct. App. Mar. 17, 2008)
Case details for

Rivera v. Ayoub

Case Details

Full title:MARIA E. RIVERA, Plaintiff and Respondent, v. NAIL AYOUB, Defendant and…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Mar 17, 2008

Citations

No. B195844 (Cal. Ct. App. Mar. 17, 2008)