Fox v. Fox








Filed 9/19/11 Fox v. Fox CA1/2





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

MARTIN T. FOX, Plaintiff and Appellant, v. CHRISTOPHER E. FOX, Defendant and Respondent.

A130163 (San Mateo County Super. Ct. No. FAM0109329)

INTRODUCTION
Appellant sought and received a domestic violence restraining order (Fam. Code, § 6200 et seq.) against his adult son, Christopher, from the San Mateo County Superior Court. On this appeal, appellant, appearing in propria persona, seeks to overturn that part of the restraining order that denied his request for an order that Christopher be remanded to the “Pathways” program. No brief has been filed by respondent Christopher. We shall affirm.
BACKGROUND
In a June 3, 2010[1] declaration in support of his ex parte application for a Domestic Violence Prevention Order (DVO) (Fam. Code, § 6200 et seq.), appellant declared that his adult son, Christopher, had suffered from severe mental illness since being hit by a truck at Christopher’s place of employment in 2007. He had been living in the family home with appellant and his wife since December 2009, had become increasingly uncooperative and verbally abusive, and had been placed on a Welfare and Institutions Code section 5150 hold after talking about suicide, killing others, and trying to get others to kill him. Christopher refused to undergo medical tests or cooperate with treatment during this hold and was discharged three days later. He assaulted appellant on the morning of June 3. The declaration also stated that Christopher was in jail and was being arraigned later that afternoon. According to a supplemental declaration filed by appellant, Christopher was arraigned on June 3, on charges of misdemeanor battery and false imprisonment. He was assigned a private defender and ordered to appear for a pretrial conference on June 11. In his ex parte application for a temporary restraining order against Christopher, appellant requested restraining orders for personal conduct, stay away, and protection of animals. Under “other orders” appellant requested that Christopher “be assigned to Pathways Mental health court.” On June 4, the court granted the temporary restraining order and checked the box stating “All granted,” pending a June 30 hearing on a permanent DVO order. By the time the temporary restraining order was actually filed on June 7, the checked box granting the order had been crossed out and the “Not Granted” box was checked. The court signed the temporary restraining order on June 7.
At the June 30 hearing set for the order to show cause on a permanent DVO, the court continued the matter to August 4, to allow Christopher to be served. At the June 30 proceeding, the trial court told appellant that it understood he wanted his son sent to Pathways, a partnership designed to help persons who have entered the criminal justice system, who are competent to stand trial, and who have both a mental health diagnosis and an alcohol and/or substance abuse problem.[2] However, as the court explained to appellant, referral to the Pathways program was only available in Christopher’s criminal case. “I cannot order someone in Pathways that doesn’t have a criminal case.” The court advised appellant that the Pathways program would “be something that would be done post-plea in his [pending] criminal case, but it is not part of a domestic[] violence restraining order.” The court informed appellant he could “talk to [Christopher’s] attorney about your request to have him in Pathways.” The court also advised appellant that at the pretrial proceeding on the criminal case, appellant could voice his request in open court.
On July 28, Christopher pleaded no contest to the charge of unlawful use of force and violence on appellant, in violation of Penal Code section 242, a misdemeanor. The People moved to dismiss the second count of the complaint pursuant to Christopher’s negotiated plea. The court suspended imposition of sentence and placed Christopher on 18 months of court probation on various terms and conditions, including 10 days of county jail, with credit for time served of one day. The court also ordered Christopher not to “harass, strike, threaten, follow, stalk, molest, destroy or damage personal or real property, disturb the peace, keep under surveillance or block the movements of [appellant]” and ordered him “not to come within a hundred yards of appellant during the course of probation.” No mention was made of any mental health referral for Christopher, and the record does not indicate whether appellant was present at Christopher’s sentencing.
At the August 4 proceeding on the civil DVO, both appellant and Christopher appeared. Christopher did not agree to the civil DVO and had filed an answer on July 22. The court stated it had read all of the papers, including the answer filed by Christopher and appellant’s reply, in which appellant again requested that the court recommend that Christopher be assigned to Pathways. Appellant asserted in that reply that Christopher’s consent to participating in Pathways was not required.
At the August 4 hearing, the court granted the requested DVO to expire August 3, 2013. The order did not refer to appellant’s Pathways request. On August 17, appellant moved for a new trial, seeking to obtain a “new injunction ordering [Christopher] to appear in Pathways Mental Health Court.” On September 28, the day before the hearing on his new trial motion, appellant filed a request for statements of decision “addressing those issues tried by each individual Judge who decided issues in this case.”[3]
On September 29, the trial court denied appellant’s new trial motion for a partial hearing regarding referral of Christopher to Pathways and further declined to render a statement of decision, finding the request for a statement of decision untimely. Again, at the hearing on the new trial motion, appellant sought to have Christopher assigned to the Pathways program. The court expressed its sympathy with appellant and his wife, commending them for being “the kind of parents that you are because it’s very obvious that you want your son to get better.” However, the court again explained that it had an obligation to follow the procedures and policies of the court and that it could not remand Christopher to Pathways on the civil restraining order case. The court stated its reasons for denying the motion for new trial. There was no new evidence presented. The court also found there was no surprise or fraud and that appellant had presented ample evidence regarding his wish for Pathways for his son and that the court had considered those documents and requests. Further, the court stated that it was not referring Christopher to Pathways as part of a civil restraining order “because Pathways is an alternative to incarceration for qualified seriously mentally ill and [dually] diagnosed individuals going through the criminal justice system. [¶] This is a civil restraining order.” The court stated that it did not have authority to refer Christopher to Pathways as part of the civil case. Moreover, the court found that Christopher was ineligible for Pathways under its own rules. In addition to the Pathways requirement that it be invoked in a criminal proceeding, the Pathways rules and procedures required that the person referred must be willing to accept the referral and voluntarily agree to participate. Further, the person referred must be a resident of San Mateo County. Christopher was not a county resident as he resided in Mountain View. The court also noted that Christopher had “rejected” willingly participating in the program. At the conclusion of the hearing, the trial court advised appellant that “[t]his does not preclude you from appealing any decision that the court has made.”
On October 27, appellant filed an appeal from the DVO entered August 4, the denial of his new trial motion[4] and request for statement of decision on September 29, the temporary restraining order entered June 7, and the reissued temporary restraining order entered June 30.
DISCUSSION
The first question we confront is whether appellant has standing to raise the issue of the court’s refusal to assign Christopher to Pathways. Since a domestic violence restraining order is a type of injunction, the court’s orders granting and refusing to vacate a restraining order are appealable under Code of Civil Procedure section 904.1, subdivision (a)(6), which allows appeals from orders granting or refusing to dissolve an injunction. (See Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1502, fn. 9, 1503-1504.) We entertain serious doubt whether appellant, who is not Christopher’s guardian ad litem, conservator, or otherwise legally entitled to represent Christopher’s interests, is a “person aggrieved” by the court’s refusal to refer Christopher to Pathways. (Code Civ. Proc., § 902; see Rebney v. Wells Fargo Bank (1990) 220 Cal.App.3d 1117, 1128, 1132; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶¶ 2:282-2:283.1, pp. 2-144 to 2:145.) Nor are we persuaded by appellant’s citation to Smith v. Freund (2011) 192 Cal.App.4th 466, for the proposition that he has standing because as a parent, he has potential liability to foreseeable victims of his son’s violence, were he and his wife to provide a home for his son or attempt to obtain treatment for him. In Smith v. Freund, the appellate court affirmed a summary judgment in favor of the parents of a mentally ill adult son on the ground that they owed no duty of care to third parties to control their son and prevent him from harming other people where the only inference the evidence reasonably supported was that the parents could not foresee their son’s violent acts because they knew of no propensity or intention of their son to harm third parties (as opposed to himself or his parents). (Id. at p. 474.) In so concluding, the court also acknowledged that liability based on a duty to control another person based on a special relationship must be based on a two-fold showing: that the defendant had the ability to control the actor, and that the defendant had a duty of care to do so based on a Biakanja/ Rowland[5] duty analysis. (Smith v. Freund, at p. 474.)
Nevertheless, to the extent that the court did not give appellant all orders he requested as part of his DVO request, we will assume, without deciding, that he has standing.
Appellant first argues that having granted “all orders” requested on June 4, the court could not before filing of the temporary restraining order, “rescind” its grant of the requested order for Pathways. Appellant is mistaken. Having doubtless determined it had inadvertently granted the “other orders,” and that it lacked jurisdiction to refer Christopher to the Pathways program, the court was empowered to correct its mistake, especially before filing of the order. (See generally, 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 69, pp. 605-606.) Appellant cites no pertinent authority to the contrary. Moreover, any possible error in the court’s correction of its temporary restraining order on June 7, was mooted by the court’s issuance of the DVO on August 4, following a contested hearing on the matter. The court granted the DVO at that hearing, without including the requested Pathways referral, and that DVO superseded the previous temporary order.
In a somewhat confusing argument, appellant apparently argues that no local rule of court or statewide rule or statute limits eligibility for the Pathways program to persons involved in criminal, rather than civil, proceedings. He suggests that the procedures and practices followed by the court to assign cases to Pathways adopted a local rule without proper publication and without following all the steps required to adopt them as a local court rule. He argues the procedures and practices followed for assigning cases to Pathways were therefore void and unenforceable and should not have been relied upon by the court in denying his request or his new trial motion. As we have noted, the Pathways program is a San Mateo County program, and the result of a partnership among the San Mateo County courts, the probation department, the district attorney’s office, the private defender program, the sheriff’s office, correctional health, and the mental health services division. It is not a local rule and appellant presents no authority for his claim that the program was not properly created or that the program’s eligibility criteria could or should be ignored.
The court correctly concluded that appellant did not timely seek a statement of decision from the August 4 issuance of the DVO. Under Code of Civil Procedure section 632, request for a statement of decision in a trial of less than one day or eight hours “must be made prior to the submission of the matter for decision.” Even were we to assume that appellant’s application for the DVO was a “trial,” appellant’s request, filed the day before hearing on his motion for new trial and more than a month after the DVO issued, was untimely.
Appellant also asserts that Family Code section 6320.5, subdivision (a), requires that “[a]n order denying a petition for an ex parte order pursuant to [s]ection 6320 shall include the reasons for denying the petition.” The court did not deny the petition for an ex parte order pursuant to Family Code section 6320. Indeed, it granted the specific injunctions referred to in section 6320.[6] Nothing in section 6320 empowers the court to order the party so enjoined to participate in a mental health program.
As did the court below, we sympathize with appellant as a parent trying to obtain mental health treatment for his adult son. On this record, we do not know whether a Pathways referral was considered in the criminal proceeding. The court’s remarks indicate that a Pathways referral may have been explored and rejected in the criminal action.[7] Whatever may have occurred in Christopher’s criminal case, the court did not err in this civil DVO case in refusing to refer appellant’s adult son to Pathways.
DISPOSITION
The orders appealed from are affirmed.


Kline, P.J.


We concur:
Lambden, J.
Richman, J.


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