Filed 5/29/13 Boone v. Simpson CA4/1
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opinion has not been certified for publication or ordered published for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.
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
STEPHANIE J. BOONE,
Plaintiff and Respondent,
v.
KERRY LEE SIMPSON,
Defendant and Appellant.
D061675
(Super. Ct.
No. DVN19495)
APPEAL from
an order of the Superior Court
of
County, Martin W. Staven, Judge. Reversed and remanded with directions.
Law Offices
of Tina Abernethy and Tina Marie Abernethy for Defendant and Appellant.
Stephanie
J. Boone, in pro. per., for Plaintiff and Respondent.
Kerry Lee
Simpson appeals from a domestic violence
prevention restraining order issued against him for the protection of his
former girlfriend, Stephanie J. Boone, and her two children. He contends that the trial court erred in
denying his request for a continuance of the hearing on Boone's request for a
to an automatic continuance under Family Code
section 243, subdivision (d). He also
contends that the court abused its discretion in issuing the restraining
order. We agree that Simpson was
entitled to an automatic continuance under section 243 and, accordingly, remand
the matter for a new hearing on Boone's request for a restraining order.
FACTUAL AND
PROCEDURAL BACKGROUND
On February 8, 2012, Boone filed a
request for a domestic violence restraining order against Simpson in which she
stated that Simpson had been relentlessly calling, texting, and e-mailing her,
demanding to know details about her current relationship with her fiancé. She stated that Simpson threatened to come to
her home in person if she did not answer his calls, and threatened to beat up
her fiancé. She and her children feared
that Simpson would follow through on his threats. On February
8, 2012, the court issued a temporary restraining order (TRO), and
on February 22, Simpson was personally served with the TRO, Boone's request for
a restraining order, and notice of hearing on the request.
Simpson
appeared in pro. per. at the hearing on Boone's request for a restraining
order, which was held on March 1, 2012. The court asked Simpson if he had filed a
response to the request and he replied that he had not. He told the court that he had suffered a
stroke and had problems remembering things, that he did not have access to a
computer, and that he had not been able to find the forms to prepare a
response. He asked the court to leave
the TRO in place and grant him an "extension" so that he could
prepare his response. The court denied
Simpson's "motion to continue," noting that Simpson had been served
with Boone's papers eight days before the hearing. The court stated that "eight
days . . . seems like plenty of time to get some sort of
response." After hearing testimony
from both parties, the court issued a restraining order with an expiration date
of February 28, 2017.
DISCUSSION
Simpson
correctly contends that he was entitled to an automatic continuance under
section 243, subdivision (d). Section
243, subdivision (b) provides that if a petition for a protective order
"has been filed, the respondent shall be personally served with a copy of
the petition, the [TRO], if any, and the notice of hearing on the
petition. Service shall be made at least
five days before the hearing."
Section 243, subdivision (d) provides:
"If service is made under subdivision (b), the respondent may file
a response that explains or denies the allegations in the petition. The
respondent is entitled, as a matter of course, to one continuance for a
reasonable period, to respond to the petition for orders." (Italics added.)
In
856 (Ross), the respondent to an
application for a domestic violence restraining order, appearing in propria
persona, requested a continuance at the outset of the hearing on the
application, and the trial court denied the request. (Id. at
p. 860.) The version of section 243 that
was in effect at that time provided that if a TRO had been issued without prior
notice to the respondent, as had been done in Ross, the respondent was " 'entitled, as [a matter] of course, to one continuance for a reasonable
period, to respond to the application for the order.' " (Ross,
supra, at p. 862, fn. 5, italics added by Ross court.)
court held that the trial court "simply lacked the discretion to deny
[respondent] the continuance he requested because he was entitled to it as a
matter of right under the terms of section
243 . . . ." (
In reaching this conclusion, the
[in domestic violence proceedings], both plaintiffs and defendants, are
unrepresented by counsel in the vast majority of
cases . . . .
We . . . know this fact influences how these
hearings should be conducted—with the judge necessarily expected to play a far
more active role in developing the facts, before then making the decision
whether or not to issue the requested permanent protective order. In such a hearing, the judge cannot rely on
the litigants to know each of the procedural steps, to raise objections, to ask
all the relevant questions of witnesses, and to otherwise protect their due
process rights." (
fns. omitted.) The Ross court acknowledged that the respondent was unaware of his
entitlement to a continuance under section 243 at the time he requested a
continuance, but stated:
"Especially in a forum which in practice must largely function
without lawyers and where the judge, as a result, is expected to play an active
role in protecting the rights of the parties, we are loathe to conjure a waiver
or forfeiture of [respondent's] statutory entitlement to a continuance from his
failure to argue those grounds when seeking a continuance at the hearing. If the trial court was aware of [respondent's]
right to a continuance, it was duty bound to rule accordingly when a
continuance was requested. If the court
was not aware of this right, that may be unfortunate but certainly not a
sufficient ground to affirm a clearly erroneous ruling." (Ross,
supra, at pp. 864-865.)
Unlike the former version of
section 243, which provided that a respondent to an application for a
restraining order was entitled to a continuance only when the TRO was issued
without prior notice to the respondent (Ross,
supra, 139 Cal.App.4th at pp. 861-862), the current version of section 243
does not differentiate between a TRO issued with notice and one issued without
notice. Instead, the current version
provides that if a respondent has been served under subdivision (b) with a
petition for a restraining order, he or she "is entitled, as a matter of
course, to one continuance for a reasonable period, to respond to the
petition . . . ."
(§ 243, subd. (d).) Thus, a
respondent to an application for a restraining order is now entitled to one
automatic continuance regardless of whether he or she was given prior notice of
a TRO issued on the application.
name="_ftnref2" title="">[2]
Although trial courts generally
have broad discretion in deciding whether to grant a request for a continuance
(Oliveros v. County of Los Angeles
(2004) 120 Cal.App.4th 1389, 1395, the mandatory continuance provision of
Family Code section 243, subdivision (d), divests the trial court of its
usually broad discretion. (
864.) Accordingly, the trial court erred
in denying Simpson's request for a continuance.
In light of our determination that Simpson is entitled to additional
time to prepare a response to Boone's application for a restraining order, we
do not reach Simpson's argument that the court abused its discretion in issuing
the restraining order.
DISPOSITION
The
restraining order entered on March 1, 2012 is reversed and the cause is
remanded to the trial court with instructions to hold a new hearing on Boone's
request for a restraining order within 30 days after issuance of this court's
remittitur. The temporary restraining
order entered on February 8, 2012 is reinstated upon issuance of the remittitur
and shall remain in effect until the conclusion of the new hearing or 30 days
after the issuance of the remittitur if there is no new hearing. If the court determines at a new hearing that
there are proper grounds for a continued restraining order, it may issue a
restraining order for the original term, which expires on February 28, 2017, or
for a shorter period of time. In light
of the fact that Boone did not file a respondent's brief, Simpson shall bear
his own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
AARON, J.
WE CONCUR:
McCONNELL,
P. J.
HALLER,
J.
name="_ftn1" title="">[1] All subsequent statutory references are to the Family Code.
name="_ftn2" title="">[2] It appears that Simpson also would have been entitled to a
continuance under former section 243 as applied in Ross, if it were still in effect, because the record indicates that
he received notice of the TRO when it was served on him on February 22, 2012,
two weeks after it was issued on February 8, 2012.
