Opinion
G054625
10-17-2018
TANYA K., Plaintiff and Respondent, v. CHRISTOPHER M., Defendant and Appellant.
Law Office of Craig A. Darling and Craig A. Darling 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16P001264) OPINION Appeal from an order of the Superior Court of Orange County, Carla Singer, Judge. Affirmed. Law Office of Craig A. Darling and Craig A. Darling for Defendant and Appellant. No appearance for Plaintiff and Respondent.
* * *
This is an appeal from a domestic violence restraining order entered against Tanya K.'s ex-boyfriend, Christopher M. Tanya initially obtained a temporary restraining order (TRO) against Christopher, and the trial court set a hearing in accordance with Family Code sections 242 and 6200 et seq. to determine whether to issue a more "permanent" domestic violence restraining order (DVRO) against him. Christopher (through his counsel) asked the court to continue that hearing for various reasons, including his invocation of his Fifth Amendment privilege against self-incrimination. The court denied his request for a continuance, and the hearing went forward in December 2016. After hearing the evidence, the court issued a DVRO that (1) prevents Christopher from having any contact with Tanya until September 2019, (2) awarded custody of their minor child to Tanya, and (3) granted Christopher limited supervised visitation rights. The issue on appeal is whether the court abused its discretion in denying Christopher's request for a continuance. Finding no error, we affirm the order.
We refer to the parties by their first names for the sake of clarity and to protect their privacy. (See Cal. Rules of Court, rule 8.90(b).)
All further undesignated statutory references are to the Family Code.
I
FACTS AND PROCEDURAL HISTORY
Tanya and Christopher were in a relationship that resulted in the birth of a son in 2014. The couple separated in May 2016. In the months that followed, Tanya sought two TROs against Christopher and ultimately obtained a DVRO against Christopher, as detailed below. A. The First TRO and the Subsequent Stipulation
Tanya sought the first TRO against Christopher in August 2016 after he allegedly drove his car erratically with their young son in the backseat. The trial court granted the TRO, set a hearing for September 6 to determine whether a DVRO should be issued, and gave Tanya sole custody of the child pending the hearing.
Christopher retained counsel to represent him. He then filed a written response to Tanya's petition that disputed her allegations and described a history of abusive and dishonest behavior by Tanya.
Christopher, his attorney, and Tanya all appeared in the trial court as scheduled on September 6. At the hearing, Tanya agreed to dismiss her request for a DVRO, and she and Christopher stipulated that they would not contact or harass one another and that they would share 50/50 custody of the child going forward. B. The Events of September 20, 2016 and the Criminal Charges Against Christopher
Just a few weeks later, events occurred that resulted in criminal charges being brought against Christopher. Christopher's account of what happened is not in the record given his invocation of his Fifth Amendment privilege against self-incrimination, so the following summary is based entirely on Tanya's testimony and written declaration.
According to Tanya, on September 20 at about 1:15 a.m., Christopher kidnapped her from her office, threatened her with a concealed weapon, insisted that she tell him who she was sleeping with, drove her to his house, made her undress in his bathtub, urinated on her body and in her mouth, and then forced oral copulation. Tanya then had consensual sex with Christopher so that she could "get out of this [situation] and survive." Christopher told Tanya that he wanted to get back together, got angry when she refused, and made her write a letter recanting everything she had said in court. They returned to her office building around 5:00 a.m., and then they talked in a nearby parking lot for about an hour before parting ways. Around 8:00 p.m. that evening, Tanya was getting into her car after a work meeting when Christopher jumped into her car's passenger seat, grabbed her, and choked her. Tanya was able to escape and called the police.
Christopher was charged with several felonies (including kidnapping, forcible oral copulation, and criminal threats) in connection with the events of September 20, and he was released on a bond. On September 23, the criminal court entered a criminal protective order pursuant to Penal Code section 136.2 that prevented Christopher from having any contact with Tanya for three years. C. The Second TRO
The criminal protective order did not protect the parties' minor son, so on September 26, Tanya petitioned the family law court for a second TRO to protect not only herself, but also her son and various other family members. She did not give notice of her petition to Christopher. The trial court granted Tanya's request for the second TRO, set a hearing for October 17 to determine whether a DVRO should be issued, and gave Tanya full custody of their son pending that hearing. D. The Continuances of the Hearing on the DVRO
At Tanya's request, the trial court continued the October 17 hearing on whether to issue a DVRO to November 7 so that Tanya could personally serve Christopher with her petition. The court also extended the terms of the TRO through the new hearing date.
In extending the terms of the TRO, the trial court referenced the "September 6" TRO rather than the operative September 26 TRO. This appears to have been in error given the case's procedural history. (See § 245, subd. (c) ["If the court grants a continuance, any temporary restraining order that has been issued shall remain in effect until the end of the continued hearing, unless otherwise ordered by the court"].)
At some point, despite an alleged lack of service, Christopher and his attorney apparently became aware of the second TRO and the November 7 hearing date. They appeared in court on November 7, along with Tanya. According to the trial court's November 7 minute order, Christopher (through counsel) advised the court that he still had not been personally served, and he "request[ed] a continuance to prepare for the case." Tanya agreed to the continuance. The court continued the hearing on whether a DVRO should be issued to December 19, extended the terms of the September 26 TRO through the new hearing date, and provided the notice of the December 19 hearing and the TRO to each of the parties.
According to Christopher's counsel, Christopher was personally served with Tanya's moving papers on December 13, just six days before the hearing. Christopher went out of town that same day and did not return until December 17. E. The December 19, 2016 Hearing on the DVRO
When the case was called on December 19, Tanya, Christopher, and Christopher's attorney all appeared. Christopher (through counsel) asked the trial court for another continuance of the hearing, and Tanya objected, asserting that she was afraid for her and her family's well-being. In support of his request for a continuance, Christopher argued that the pending criminal charges against him forced him to invoke his Fifth Amendment privilege against self-incrimination, that he was thus precluded from defending himself, and that he needed a continuance "for an extended period of time to allow the criminal matter to run its course." The court denied Christopher's request, noting that it could take two to three years for Christopher's criminal case to run its course and that there is no legal authority for continuing the hearing through either acquittal or conviction.
Christopher's counsel alternatively asked the trial court to "trail this matter for one to two days to allow [him] some additional time to prepare [his] client, [and] prepare witnesses." He explained that Christopher had not been served with the petition until December 13, that Christopher's trip out of town December 13 through 17 had prevented them from preparing for the hearing, and that he had assumed the hearing would be continued given Christopher's invocation of his Fifth Amendment privilege. The court denied this request as well, noting that Christopher and his attorney have been "well aware of the circumstances of this case for at least three months" (having previously appeared in the case multiple times), and that Christopher could call his witnesses (if any) the next day if desired.
The hearing went forward as scheduled on December 19. The trial court first heard from Tanya, who was unrepresented. She testified regarding the events of September 20 and Christopher's various acts of abuse over the years. Then Christopher's counsel cross-examined Tanya and confronted her with various documentary evidence, including some text messages that the parties had exchanged on September 20, along with several social media posts Tanya had made. Christopher declined to take the stand, invoking his Fifth Amendment privilege against self-incrimination, and he did not call any percipient witnesses. F. The Trial Court's Findings and the DVRO
After hearing the evidence, the trial court found that there was "proof by a preponderance of the evidence that there was not only domestic violence on September 20th, 2016, but a pattern of domestic violence that was occurring and increasing in severity over a period of time that amounted to two to three years." The court accordingly issued a DVRO against Christopher that (1) prevented him from having any contact with Tanya until September 2019 and listed the child as an additional protected person, (2) gave Tanya custody over the child, and (3) ordered that Christopher may have supervised visitation of the child.
Christopher appealed, asserting that the trial court erred in refusing to grant his December 19 request for a continuance. Tanya did not file a response brief.
II
DISCUSSION
A. Standard of Review
"An order granting or denying a continuance is reviewed under the abuse of discretion standard." (Bussard v. Department of Motor Vehicles (2008) 164 Cal.App.4th 858, 863.) This is true even if the continuance is mandated by statute. (See, e.g., Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 527-528 (Freeman); Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270.) Accordingly, we "must uphold a trial court's choice not to grant a continuance unless the court has abused its discretion in so doing." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.)
"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.) The party whose request for a continuance was denied bears the burden of showing that the court abused its discretion. (Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.) In reviewing the denial of a continuance, a "'reviewing court should not disturb the exercise of a trial court's discretion unless it appears that there has been a miscarriage of justice.'" (Ibid.) B. Standards Governing Continuances
"Trial courts generally have broad discretion in deciding whether to grant a request for a continuance. [Citation.] However, some statutes make continuances mandatory and, therefore, divest the trial court of its usually broad discretion. [Citation.]" (Freeman, supra, 192 Cal.App.4th at p. 527.)
Section 245 contains two provisions governing when and whether a DVRO hearing should be continued. The first, subdivision (a), is mandatory: "The respondent shall be entitled, as a matter of course, to one continuance for a reasonable period, to respond to the petition." (§ 245, subd. (a), italics added; see Ross v. Figueroa (2006) 139 Cal.App.4th 856, 862 (Ross) [discussing mandatory nature of former section 243, subd. (e), the language of which was later moved to section 245, subd. (a)].) The second, subdivision (b), is discretionary and dependent on a showing of good cause: "Either party may request a continuance of the hearing, which the court shall grant on a showing of good cause." (§ 245, subd. (b); see also Cal. Rules of Court, rule 3.1332(c) ["The court may grant a continuance only on an affirmative showing of good cause requiring the continuance"].) C. Christopher Was Not Entitled to a Mandatory Continuance Under Section 245 , Subdivision (a).
Christopher argues on appeal that a mandatory continuance was required under section 245, subdivision (a), which entitles a respondent "as a matter of course, to one continuance for a reasonable period, to respond to the petition." Christopher did not invoke this section in the trial court, but we will consider it nonetheless. (See Ross, supra, 139 Cal.App.4th at pp. 864-865 [considering this section when reviewing denial of respondent's request to continue hearing on a DVRO, even though respondent, who was unrepresented, failed to cite the section to the court].)
We find section 245, subdivision (a), unavailing for several reasons. First, Christopher had previously requested, and was granted, a continuance on November 7. According to the trial court's minute order from November 7, the hearing was continued at Christopher's request from November 7 to December 19. Christopher thus had over a month to prepare his case and file a written response if desired. Section 245, subdivision (a), did not entitle him to a second mandatory continuance.
Second, at no point during the December 19 proceedings did Christopher claim that he wanted a continuance "to respond to the petition" in writing within the meaning of section 245, subdivision (a). The purpose of subdivision (a)'s continuance requirement is "to allow the respondent 'reasonable time' to respond [in writing] to the applicant's grounds for seeking the protective order." (Ross, supra, 139 Cal.App.4th at p. 862; see §§ 243, subd. (c) [allowing respondent to file an optional "response that explains or denies the allegations in the petition"], 245, subd. (a) ["The respondent shall be entitled, as a matter of course, to one continuance for a reasonable period, to respond to the petition." (Italics added.)].) To provide such a written response, a respondent must complete and file a DV-120 form, which is in essence a declaration in which the respondent explains or denies, under penalty of perjury, the allegations in the petition. We realize Christopher likely did not file such a response to Tanya's petition because he was concerned about waiving his Fifth Amendment privilege. He does not claim on appeal that he would have filed a written response to the petition if given more time, much less specify what the contents of such a written response would have been. And he at no point indicated to the trial court that he wanted an opportunity to respond to the petition in writing; he instead asked the court to continue the hearing until the criminal charges had been resolved, or alternatively, to trail "for one to two days" so he could prepare for the hearing. Subdivision (a) did not obligate the court to grant Christopher a continuance under these circumstances.
A defendant may not make a sworn statement about a matter and then later assert the privilege in the very same proceeding. (Mitchell v. United States (1999) 526 U.S. 314, 321 ["It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details"]; In re Edmond (4th Cir. 1991) 934 F.2d 1304, 1308-1309 [a declaration "operates like other testimonial statements to raise the possibility that the witness has waived the Fifth Amendment privilege"].)
Third, even if section 245, subdivision (a) did mandate a continuance, we would still affirm the order because, as we hold below, there is no indication that Christopher was denied a fair hearing. (Freeman, supra, 192 Cal.App.4th at pp. 527-528 ["[A]ny 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"].) D. The Trial Court Did Not Abuse Its Discretion Under Section 245 , Subdivision (b) in Denying the Continuance.
Section 245, subdivision (b), provides that "[e]ither party may request a continuance of the hearing, which the court shall grant on a showing of good cause." We find no abuse of discretion in the trial court's conclusion that there was not good cause for a continuance.
1. Christopher's Invocation of His Fifth Amendment Privilege Against Self-incrimination Did Not Entitle Him to a Multi-Year Continuance.
Christopher contends that a continuance was warranted in light of his invocation of his Fifth Amendment privilege against self-incrimination. Not so.
The privilege against compelled self-incrimination may be asserted in any type of proceeding — civil or criminal. (People v. Berry (1991) 230 Cal.App.3d 1449, 1453.) But while a criminal defendant's Fifth Amendment privilege is absolute, a civil defendant must either waive the privilege or accept the civil consequences of his or her silence. (In re Marriage of Sachs (2002) 95 Cal.App.4th 1144, 1155-1156; Alvarez v. Sanchez (1984) 158 Cal.App.3d 709, 712.)
"'Courts recognize the dilemma faced by a defendant who must choose between defending the civil litigation by providing testimony that may be incriminating on the one hand, and losing the case by asserting the constitutional right and remaining silent, on the other hand.'" (In re Marriage of Sachs, supra, 95 Cal.App.4th at pp. 1155-1156.) However, "'courts must also consider the interests of the plaintiff in civil litigation where the defendant is exposed to parallel criminal prosecution. . . . "'"[T]he fact that a man is indicted cannot give him a blank check to block all civil litigation on the same or related underlying subject matter."'"'" (Ibid.) Thus, although a trial court should attempt to "fairly balance the interests of the parties and the judicial system," it need not stay a civil proceeding for several years until the criminal statute of limitations expires. (Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 307, 309 [finding that "the trial court did not abuse its discretion refusing to stay the civil proceedings until the criminal statute of limitations expires," and noting that the proposed three-year stay would expose "both sides of the litigation to the risk of diminished memory and lost records"].) "A defendant may not bring a civil action to a halt simply by invoking the privilege against self-incrimination." (Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1045, 1055 [rejecting defendant's argument that the court "should have accommodated his inability to respond" to petition for preliminary injunction].)
Christopher relies heavily on In re Dolly A. (1986) 177 Cal.App.3d 195 (Dolly A.), which involved a father's invocation of his Fifth Amendment privilege at the jurisdictional hearing in his young daughter's dependency case. The father, who was accused of sexually molesting his daughter, moved to continue the jurisdictional hearing in her dependency case pending completion of his trial on related criminal charges. (Id. at pp. 198-201.) Finding the trial court's denial of his request to be an abuse of discretion, the appellate court reasoned that the denial "forced [the] defendant to elect between giving up his right not to be deposed as a criminal defendant and his right to testify on his own behalf in the proceeding to deprive him of custody of his daughter." (Id. at p. 201.)
Though at first blush this seems persuasive, Dolly A. is distinguishable because the continuance sought was only "'six to ten weeks,'" and "[t]he risk of possible injury to Dolly's interests [during that period] was relatively slight. . . ." (Dolly A., supra, 177 Cal.App.3d at pp. 199, 201.) Here, by comparison, Christopher sought an open-ended continuance to allow the felony charges against him to run their course, a process that the trial court noted could take two to three years. Given the considerable duration of the continuance Christopher sought, and given Tanya's interests in securing the safety of her child (who was not covered by the criminal protective order), we cannot say that the court abused its discretion in denying Christopher's request for a continuance. The felony charges pending against him did not give him carte blanche to continue the hearing indefinitely.
Also, Dolly A. did not involve a continuance request made under section 245. Instead, it involved a continuance request made under Welfare and Institutions Code section 352, which governs continuances in juvenile dependency cases, and the daughter's counsel conceded that the factors listed in section 352 (the "minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements") were inapplicable. (Id. at p. 199.) There was no analogous concession made here.
Christopher also argues that his invocation of his Fifth Amendment privilege constituted good cause for a continuance under rule 3.1332 of the California Rules of Court. This rule provides in pertinent part that "[a]though continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: [¶] . . . [¶] (2) The unavailability of a party because of . . . excusable circumstances; [or] [¶] . . . [¶] (6) A party's excused inability to obtain essential testimony . . . despite diligent efforts." (Cal. Rules of Court, rule 3.1332(c), italics added.) Neither subsection is applicable here. Christopher was not unavailable to testify; he just chose not to. The privilege against self-incrimination does not support a blanket refusal to testify. (In re Marriage of Sachs, supra, 95 Cal.App.4th at p. 1151.)
Nor did any of the other factors listed in rule 3.1332(c) or (d) of the California Rules of Court require a continuance.
2. Christopher Has Not Demonstrated That He Was Denied a Fair Hearing or That There Was a Miscarriage of Justice.
As noted above, the trial court's denial of Christopher's request for a continuance "is reversible only if it is tantamount to the denial of a fair hearing" (Freeman, supra, 192 Cal.App.4th at pp. 527-528) or if "'there has been a miscarriage of justice'" (Mahoney, supra, 223 Cal.App.3d at p. 170). Such was not the case here.
First, Christopher had plenty of time to prepare for the hearing. He and his counsel were clearly aware of the pending petition for a DVRO for at least a month (possibly more) prior to the December 19 hearing, as evidenced by the fact that they both appeared in court on November 7 and agreed to the new hearing date of December 19. The fact that Christopher went out of town for a few days before the hearing is not compelling, as he and his counsel had multiple weeks before that to prepare. The service of Tanya's moving papers on December 13 did not constitute "[a] significant, unanticipated change in the status of the case . . ." as Christopher suggests on appeal.
Second, notwithstanding his invocation of the Fifth Amendment, Christopher had ample opportunity to present his case to the trial court on December 19. Christopher was represented by counsel at all relevant times. His counsel ably and thoroughly cross-examined Tanya and attempted to impeach her credibility with her text messages and social media posts. The court asked Christopher if he had any percipient witnesses to call and told him that he could have until the following day to call any such witnesses (though Christopher had none). Christopher has not told us about any witnesses he would have called had another continuance been granted. After making its ruling, the court observed that Christopher's counsel "put on as thorough a defense as he could given that [Christopher elected] to remain silent." On this record, we find no miscarriage of justice. (See Oiye, supra, 211 Cal.App.4th at p. 1055 [finding "no deprivation of due process" where defendant "remain[ed] silent in the face of ongoing criminal proceedings rather than filing his own declaration in opposition to plaintiff's request for a preliminary injunction," noting that "defendant remained free to present other evidence to contradict plaintiff's declaration of molestation"].)
The only witness Christopher had was a character witness, and the trial court said it would not hear from character witnesses.
We also reject Christopher's argument that the trial court was "confused" about the case's procedural history when it denied his continuance request. Any misstatements the court may have made during the December 19 hearing about the case's procedural history (e.g., the court's suggestion that Christopher had previously appeared multiple times in connection with Tanya's second petition) were immaterial, as the court's ultimate ruling was well-founded.
Finally, the trial court's denial of the continuance was neither "'irrational'" nor "'arbitrary'" (see Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773) under the circumstances. Continuing the hearing to a date uncertain would have created a risk of diminished memories and would not have fostered the efficient use of judicial resources. Section 242 requires that the hearing following the issuance of a TRO be held promptly: "Within 21 days, or, if good cause appears to the court, 25 days from the date that a temporary restraining order is granted or denied, a hearing shall be held on the petition." The parties had an interest in expediting the DVRO process and obtaining resolution, both to avoid further contact with one another necessitated by additional court appearances and to put the matter behind them. Tanya was entitled to have this matter resolved for the safety and peace of mind of all concerned, including her son. We thus find no abuse of discretion.
III
DISPOSITION
The order is affirmed. No costs are awarded on this appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
MOORE, J. WE CONCUR: O'LEARY, P. J. THOMPSON, J.