Barfield v. Barfield

Filed 8/6/08 Barfield v. Barfield CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Amador)

----

Charles Barfield III appeals from a one-year restraining order issued against him pursuant to the Domestic Violence Protection Act (Fam. Code, 6200, et seq., the Act), that required him to stay away from Katelyn Griffith Barfield.^[1] The appellate record Charles has provided indicates the order expired by its own terms on November 28, 2007.

His sole contention on appeal is that the superior court erred in refusing to grant his request for a continuance of the hearing on the extension of the temporary restraining order to one year. This appeal has been rendered moot by the expiration of the restraining order. Consequently, we dismiss the appeal.

BACKGROUND

On November 7, 2006, Katelyn filed a request for a temporary restraining order under the Act against Charles. In her request, Katelyn described a single recent event, in which Charles came into her house without consent after the parties had been legally separated for nine months, and started an unprovoked attack on a male guest of Katelyns; the resulting fight went through [her] house, out to the back porch, [and] there was blood everywhere. Katelyn sought a restraining order until our divorce is settled.

The court issued the temporary restraining order prohibiting Charles from (among other things) contacting, harassing, or threatening Katelyn; it also ordered him to stay at least 25 yards away from her and her home, work, and car.

No reporters transcript of the November 28, 2006, hearing on the extension of the restraining order appears in the record. According to the clerks minutes of that hearing, both parties appeared. Katelyn represented herself, and Charles was represented by counsel, who requested on Charless behalf that the hearing be continued. Court denies the request as this is the time and date set for the contested hearing. [Charless attorney] objects and states he is entitled to one continuance by law. Court states that is at the Courts discretion and denies the request to continue. The clerks minutes indicate that the court then heard evidence, granted the restraining order, and ordered that it remain[] in effect for one year, subject to motion to terminate early.

DISCUSSION

After Charles filed his notice of appeal, but before he filed his brief on appeal, the restraining order apparently expired by its own terms. As the brief on appeal does not address the effect of the orders expiration, we asked Charles to explain in supplemental briefing why his appeal should not be dismissed as moot.

As a rule, an appellate court decides actual controversies. (Giles v. Horn (2002) 100 Cal.App.4th 206, 226.) It is not the function of the appellate court to render opinions . . . upon moot questions or abstract propositions, or . . . declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. [Citations.] (Id. at p. 227; see also Wilson v. L. A. County Civil Service Com. (1952) 112 Cal.App.2d 450, 453 [[A]lthough a case may originally present an existing controversy, if before decision it has, through act of the parties or other cause, occurring after the commencement of the action, lost that essential character, it becomes a moot case or question which will not be considered by the court.]; MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214 [where reversal of judgment will have no practical effect, appeal is moot].)

Here, the restraining order Charles asks us to vacate for a new hearing expired by its own terms on November 28, 2007. When, as here, the relief granted by the trial court is temporal and expires before an appeal can be heard, the appeal is moot. (Environmental CharterHigh School v. CentinelaValleyUnionHigh School Dist. (2004) 122 Cal.App.4th 139, 144.)

However, there are three discretionary exceptions to the rules regarding mootness: (1) when the case presents an issue
of broad public interest that is likely to recur [citation];
(2) when there may be a recurrence of the controversy between the parties [citation]; and (3) when a material question remains for the courts determination [citation]. (Environmental Charter High School v. Centinela Valley Union High School Dist., supra, 122 Cal.App.4th at p. 144.)

In Charless supplemental letter brief, he makes no attempt to argue that the case presents an issue of broad public interest, or that a material question remains for a courts determination. (Cf. Environmental Charter High School v. Centinela Valley Union High School Dist., supra, 122 Cal.App.4th at p. 144.) Rather, he asserts (1) there is no basis for the issuance of the Order to begin with; (2) the [t]rial [c]ourt . . . needs to know that the granting of that continuance was automatic, and not discretionary; and (3) the fact of the restraining order is the type of event that may come up again and again because the District Attorney or complaining witness will be able to say . . . that he was subject to a prior Protective Order . . . . These assertions, however, do not satisfy the requirement of a showing that there may be a recurrence of the controversy (ibid.): he neither argues that a controversy between the parties, or the events Katelyn alleges occurred, will recur.

Finally, Charles argues the issue is not moot, since the fact that an Order was issued and his rights restricted is of common knowledge in the police community and at the Court. He misunderstands the concept of mootness. The order has expired; even were he to prevail on the merits, there is no order remaining for us to vacate and send back to the trial court for a continuance and rehearing.

DISPOSITION

The appeal is dismissed.

NICHOLSON , J.

We concur:

SCOTLAND, P.J.

CANTIL-SAKAUYE , J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

^[1] We refer to the parties by their first names, for the sake of simplicity and clarity.