Karnazes v. Ferry
Filed 6/25/13 Karnazes v. Ferry CA1/1
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
ONE
ELIZABETH
KARNAZES,
Plaintiff and Respondent,
v.
JOHN EARL
FERRY,
Defendant and Appellant.
A132500
(San Mateo
County
Super. Ct.
No. CIV-503749)
ELIZABETH
KARNAZES,
Plaintiff
and Respondent,
v.
KIRSTEN
JEAN PETERSEN,
Defendant
and Appellant.
A132501
(San
Mateo County
Super.
Ct. No. CIV-503541)
I. Introduction
The two
these appeals arise out of plaintiff Elizabeth Karnazes’s limited legal
representation of defendants John Ferry (appeal No. A132500) and Kirsten
Petersen (appeal No. A132501), and an arrangement to which the three agreed
whereby Petersen worked for Karnazes, in part as a legal assistant, in exchange
for Karnazes’s legal services. As the
relationship soured, Karnazes, on the one hand, and Ferry and Petersen, on the
other, made heated accusations against one another. Karnazes eventually obtained civil
restraining orders against Ferry and Petersen.
Ferry and
Peterson appeal from several orders issued during the proceedings: (a) orders issued May 24, 2011, granting
Karnazes’s ex parte requests for a continuance of the hearing date on her
restraining order applications; (b) orders issued June 30, 2011, denying
Petersen’s motion to consolidate the two harassment proceedings and denying
Petersen’s and Ferry’s motions to further continue the hearing date; and (c)
the restraining orders issued July 1, 2011.
For the reasons set forth, we affirm the challenged orders.
II. Factual and Procedural Background
On February
28, 2011, Karnazes filed an application for a civil restraining order against
Petersen (form No. CH-100). Karnazes
alleged she met Petersen while at the San Mateo County courthouse, and Petersen
later called Karnazes and said she was an experienced legal secretary looking
for work. Karnazes considered hiring
her. Karnazes further alleged that
between February 26 and 28, Petersen made a number of threats, including that
she would “ ‘[n]ail [Karnazes] in’ †and “ ‘[b]urn [her]
out’ †of her house, that she would beat up Karnazes, and that Peterson’s
son, who was an inmate at San Quentin at the time, might come after her. Karnazes further alleged Petersen stole
“thousands of dollars†and legal files, which Petersen was “holding for ransomâ€
to force Karnazes to provide legal services.
She also alleged Petersen threatened to circulate a defamatory flier and
picket at Karnazes’s house and at the San Mateo County courthouse. She additionally alleged Petersen had altered
legal documents and filed them with the court without Karnazes’s authorization,
and had also used Karnazes’s legal letterhead without permission. On the basis of Karnazes’s application, the
trial court issued a temporary restraining order (TRO) (form No. CH-120)
prohibiting Petersen from being within 100 yards of Karnazes and requiring her
to return Karnazes’s property and legal files, and set a hearing for March 18,
2011.
Less than
two weeks later, on March 7, 2011, Karnazes filed an application for a civil
restraining order against Ferry (Form CH-100).
Karnazes alleged she met Ferry through Petersen, his “live-in
girlfriend,†and at Petersen’s behest had provided legal services to
Ferry. Karnazes repeated all the allegations
she had previously made as to Petersen.
She further alleged Ferry was stalking her, had left a threatening
telephone message, had written a “bizarre†letter to a judge “defaming†her,
had “apparently†broken into her house and had threatened her by telling her he
had a third degree black belt in martial arts and owned firearms. She also claimed Ferry would not meet with
her without Petersen present and asserted she was “terrified†of Petersen and
her son, and Ferry. On the basis of
Karnazes’s application, the trial court issued a TRO (form No. CH-120)
prohibiting Ferry from being within 100 yards of Karnazes and set a hearing for
March 29, 2011.
On March
11, 2011, the trial court reissued the TRO against Petersen (form No.
CH-125). Karnazes claimed Petersen was
continuing to threaten, harass and stalk her, was avoiding service of process,
and was communicating with opposing counsel in Karnazes’s cases and disclosing
privileged information she learned while working for Karnazes as a legal assistant. The court reset the hearing on Karnazes’s
application for a civil restraining order to April 5, 2011. On April 1, 2011, the trial court reissued
the TRO against Petersen for a second time on the basis of the same claims by
Karnazes. The hearing on Karnazes’s
application was reset to April 14, 2011.
In the
meantime, on March 28, 2011, the trial court reissued the TRO against Ferry
(form No. CH-125). Karnazes claimed
Ferry was also continuing to threaten, harass and stalk her, and was avoiding service
of process. The court reset the hearing
on Karnazes’s application against Ferry to April 15, 2011.
On April
11, 2011, Petersen and Ferry filed motions to consolidate the two civil
harassment proceedings and to continue the hearings on Karnazes’s applications. The assertions in the motions were virtually
identical. They claimed Ferry had paid
Karnazes to help him file an amended complaint in a civil action so that case would
be reclassified as one of unlimited jurisdiction. However, because of Karnazes’s allegedly
incompetent work, the motion to amend and a renewed motion had been
denied. They also complained Karnazes
never provided a written fee agreement.
They further alleged Karnazes had agreed to help Petersen with a legal
matter and also a possible legal action by Petersen’s son. They alleged Petersen was a legal secretary
and had Ferry’s power of attorney, and Karnazes had agreed to provide legal
services in part in exchange for work by Petersen. They asserted Petersen incurred expenses for
which she should have been reimbursed.
Petersen also claimed she observed unethical practices by Karnazes and
had become uncomfortable working as she instructed. When Peterson expressed concern, Karnazes
allegedly became angry and threatened her.
Petersen did not take these threats seriously because Karnazes had made
prior threats to commit suicide and had a long history of mental health
issues. When the relationship between
the three deteriorated, Petersen disclosed some of this information to Ferry. Petersen and Ferry tried to meet with
Karnazes to put into writing the “assurances†they had assertedly been given by
Karnazes. When she avoided them,
Petersen and Ferry “realized†Karnazes was trying to avoid her responsibilities
to them. Petersen and Ferry then went to
the police, and Petersen “divulged†Karnazes’ threats on Petersen’s life. Peterson and Ferry further asserted Karnazes
had “wrongly obtained†the restraining orders against “innocent†persons who
had “initiated . . . legal processes†to hold Karnazes “accountable for her
devious conduct toward them.†They also
claimed Karnazes’s proofs of service were fraudulent.
The same
day, Petersen and Ferry also filed answers to Karnazes applications for
restraining orders (Forms CH 110). They
alleged Karnazes was retaliating for their efforts to “redress [their]
grievances†against her, and they asserted consolidation and a continuance of
the hearing were warranted.
On April
14, 2011, the court heard Petersen’s motions.
The court continued the hearing on the application for a civil
restraining order to May 27, 2011, with the TRO remaining in effect, and put
the motion to consolidate over to the following day, when Ferry’s motions were
set for hearing.
On the same
day, April 14, 2011, Karnazes filed a “notice
of unavailability†from April 15 to May 20.
She claimed to have a long-scheduled trip planned that was unchangeable
and nonrefundable. The next day, on
April 15, 2011, the court heard Ferry’s motions. The court also continued the hearing in the
27, 2011, with the TRO remaining in effect.
The court declined to rule on the motions to consolidate, leaving them
for the trial judge to decide.
On April
29, 2011, Ferry filed a notice of related case in the proceeding against
him. On May 5, 2011, Petersen filed an
amended motion to consolidate in the proceeding against her. The import of her amended motion was the same
as her original motion, although the amended motion was more heated in tone.
On May 10,
2011, Petersen filed a notice to Karnazes “to appear at trial and to produce
documents†at the May 27, 2011 hearing.
The next day, on May 20, Petersen and Ferry filed “notices of
unavailability†from July 1, 2011 to August 1, 2011. They did not, however, provide any
explanation as to why they would be unavailable.
On May 23,
2011, the parties engaged in a series of telephone and FAX communications. The upshot was that Petersen filed a crime
report, complaining of a 5:20 a.m. telephone call from Karnazes. Karnazes, in turn, proceeded with ex parte
requests for a continuance of the hearing date on her civil harassment
applications, claiming her chosen attorney and several witnesses were
unavailable on the scheduled date. She
also represented that Petersen and Ferry did not oppose a continuance. The court granted the requests, continued the
TROs in effect, and reset the hearings for June 30, 2011.
On May 27,
2011, Petersen and Ferry appeared in court and were told the proceedings had
been continued to June 30. Petersen
stated they had been unaware of the ex parte hearing and asserted Karnazes had
misrepresented that she and Ferry wanted a continuance.
The same
day, Petersen and Ferry filed their own motion to continue the hearing date
from June 30, 2011 to August 12, 2011, on the ground they needed time for
discovery. Petersen also filed yet a
third (second amended) motion to consolidate.
A week and
a half later, on June 7, 2011, Petersen and Ferry filed amended motions to
continue the hearing date and requested sanctions for Karnazes’s alleged
failure to “meet and confer†and allegedly improper ex parte request to
continue the hearing dates and misrepresentations to the court. Karnazes filed written opposition to the
amended motions to continue, and Petersen and Ferry filed replies. Karnazes did not file written opposition to
Petersen’s second amended motion to consolidate.
On June 30,
2011, the proceedings against Petersen and Ferry were called on the calendar at
the same time. Karnazes was late, having
gone to the police department that morning to make a complaint about Ferry. The calendar judge ruled first on Petersen’s
motion to consolidate, which Karnazes orally opposed on the ground she wanted
all witnesses at the hearings excluded until called. The court denied Petersen’s motion,
explaining restraining orders are issued against an individual based on his or
her own conduct and the court did not believe any efficiencies would result
from consolidation for all purposes.
However, the calendar judge also stated the manner in which the evidence
would be presented at the hearings would be left to the judge who would be
assigned to hear the matters.
The
calendar judge next addressed Petersen’s and Ferry’s motions to continue. They claimed they were entitled to discovery
from Karnazes and had received none. The
court also denied these motions, explaining the civil discovery rules do not
apply given the compressed time frame of civil harassment proceedings. The court further explained that most of the
evidence Petersen identified as being of concern could be readily presented by
the parties. As to other items, the
court was not persuaded of its relevance.
Ferry also advised the court the only witnesses he and Petersen
anticipated calling were themselves.
Petersen and Ferry also finally disclosed the basis for their claimed
unavailability from July 1 to August 1, that they were moving, the house they
were moving into was being “remodeled†and they were doing the work, and their
“case materials†were “packed.†After
the court stated it would not schedule the hearing on a day hired movers would be
working, Petersen stated the only day movers were scheduled was July 9. Ultimately, the court concluded it was “in
everyone’s best interest†for the matters to be resolved, and denied the
motions to continue. There were no
courtrooms available for a day-long hearing in August, but there was a
courtroom available the following day, on July 1, and the court continued the
matter to be assigned out accordingly.
At the conclusion of the hearing, Petersen asked to review the court
file and was directed to the clerk’s office.
That same
day Petersen and Ferry filed notices of appeal from the May 24 orders granting
Karnazes’s ex parte requests to continue the hearing dates from May 27 to June
30 and from the June 30 orders denying Petersen’s second amended motion to
consolidate and their motions for a further continuance of the hearings.
The
following day, July 1, 2011, the two proceedings were again called on the
calendar. Petersen and Ferry did not
appear, nor did they appear in the court to which the proceedings were assigned
for hearing despite attempts by the court clerk to contact them by phone.
testified on her own behalf and averred to the truth of her allegations against
Petersen and Ferry. The trial court
found Karnazes’ testimony provided clear and convincing evidence to support the
issuance of the requested restraining orders, and issued three-year orders
(form No. CH-140) prohibiting Petersen and Ferry from coming within 100 yards
of Karnazes, her house and workplace, her vehicle, and any animals she
owned. The orders further prohibited
Petersen and Ferry from disclosing to anyone any privileged information about
Karnazes or Karnazes’s clients. While
the court expressed some doubt about including this prohibition in the
restraining orders, it concluded it had been approved by the judge who had
issued the TROs and included a similar prohibition. The court recognized Petersen and Ferry had
First Amendment rights, but agreed with Karnazes those rights did not “extend[]
to the right to disclose privileged information . . . [Petersen] learned while
working†as her legal assistant. The
court also stated that if Petersen and Ferry wished to “come in and litigate
that at some point, we’ll be happy to take [them] up on that.â€
On July 8,
2011, Petersen and Ferry filed amended notices
of appeal that included the July 1 restraining orders.
Denial of Consolidation
“When
actions involving a common question of law or fact are pending before the
court, it may order a joint hearing or trial of any or all the matters in issue
in the actions; it may order all the actions consolidated and it may make such
orders concerning proceedings therein as may tend to avoid unnecessary costs or
delay.†(Code Civ. Proc., § 1048,
subd. (a).) “Code of Civil Procedure
section 1048 grants discretion to the trial courts to consolidate actions
involving common questions of law or fact.
The trial court’s decision will not be disturbed on appeal absent a
clear showing of abuse of discretion.†(
Trust (1996) 48 Cal.App.4th 976, 978–979.)
Petersen
and Ferry complain Karnazes failed to file written opposition to Petersen’s
second amended motion to consolidate.
opposition to consolidation voiced at the June 30 calendar hearing—based on her
desire to have witnesses excluded at the hearings—was not weighty enough to
deny consolidation. They also assert the
calendar judge was wrong in concluding judicial efficiency did not warrant
consolidation.
None of
these complaints demonstrate a prejudicial abuse of discretion by the
court. While it would have been better
practice for Karnazes to have filed written opposition to Petersen’s motion, it
was well within the court’s discretion to allow her to orally argue against the
motion. Karnazes’s desire to have
witnesses excluded during the civil harassment hearings was also a legitimate
basis to oppose the motion. Finally, the
court acted well within its discretion in concluding consolidation would not
effect any significant economy of judicial resources. The proceedings were already being heard in
tandem, and the calendar judge left it to the trial judge to determine how to
best handle the presentation of evidence.
Since Petersen and Ferry failed to appear at the hearing, they also
cannot make any showing as to how they were conceivably prejudiced by the lack
of consolidation.
Denial of a further continuance
Unless a
specific continuance statute applies, trial courts “have broad discretion in
deciding whether to grant a request for a continuance.†(Freeman
v. Sullivant (2011) 192 Cal.App.4th 523, 527.) Although an order granting or denying a
continuance is not itself appealable, it may nonetheless be reviewed on appeal
from a related judgment. (Ibid.) In this context, the order “is reviewed under
the abuse of discretion standard. [Citation.]
Such decisions will be upheld unless a clear abuse is shown, amounting
to a miscarriage of justice.†(
(2008) 164 Cal.App.4th 858, 863; Freeman
v. Sullivant, supra, 192
Cal.App.4th at p. 528 [“the burden to demonstrate prejudice is on the
appellantâ€].)
Petersen
and Ferry challenge both the May 24, 2011, orders granting Karnazes’s ex parte
requests to continue the hearings on her applications for civil restraining
orders from May 27 to June 30, and the June 30, 2011, orders denying their
motions for a further continuance.
They level
a host of accusations at Karnazes, but basically complain that she made
misrepresentations to the court, failed to make an adequate showing and failed
to provide proper notice of her ex parte requests for a continuance of the
hearing date. Karnazes’s written
requests were procedurally adequate, and Petersen and Ferry are basically
disputing the credibility of her declarations.
It was the province of the trial court to assess Karnazes’s
credibility. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th
1548, 1562.) The court did so, and there is no basis in
the record to find any abuse of discretion.
Petersen and Ferry also cannot show prejudice, in any event, since they
subsequently filed motions for a further continuance and had a full opportunity
to argue those motions. Although those
motions were denied, there was no abuse of discretion as to those rulings
either, as we next discuss.
Petersen
and Ferry make a host of complaints about the denial of their motions for a
further continuance. Basically, they
assert their motions were more extensive than Karnazes’ ex parte requests and
claim they were not fairly treated by the court. The record does not demonstrate any abuse of
discretion by the court in denying Petersen’s and Ferry’s motions to
continue. On the contrary, the record
shows the court was exceedingly patient with the parties and listened to all
their arguments. Although Petersen and Ferry assert the court at first
appeared to be receptive to their request, as we read the record, the court was
not even initially receptive to a continuance of the duration they wanted. Moreover, as the hearing continued and the
court learned more concrete information about the parties’ circumstances, it
determined the proceedings “need[ed] to come to a conclusion.†The court reviewed with Petersen her claims
that she and Ferry needed additional discovery.
As the court explained, they had no right to formal discovery, and all
relevant evidence could be presented through their own testimony. When Petersen and Ferry finally disclosed the
basis of their asserted “unavailability†during the entire month of July—that
they were moving, the house to which they were moving was being remodeled and
they were doing the work, and their files were packed—the court understandably
deemed this an insufficient reason not to appear for an entire month. In light of all the circumstances, which also
included that Karnazes was ready to proceed with witnesses and no courtrooms
were available for an all-day hearing during August, the court acted well within
its discretion in denying any further continuance and scheduling the hearings
for the following day.
The Restraining Orders
Ordinarily,
we review a restraining order issued in a civil harassment proceeding under the
substantial evidence standard. (
188; Bookout v. Nielsen (2007) 155
Cal.App.4th 1131, 1137 [“injunctions issued under Code of Civil Procedure
sections 527.6 and 527.8, which prohibit civil harassment, are reviewed to
determine whether the necessary factual findings are supported by substantial
evidenceâ€].)
However, as we have recited, Petersen and
Ferry failed to appear at the hearing.
Accordingly, they waived their right to make their own evidentiary
showing (Code Civ. Proc., § 594, subd. (a); Au-Yang
v. Barton (1999) 21 Cal.4th 958, 965 [with notice of continued
trial date, litigant fails to appear at own peril]; People ex rel. San Francisco
Bay Conservation etc. Com. v. Smith (1994) 26 Cal.App.4th 113, 128) and waived any objections to Karnazes’
evidence (see Barnum v. State Bar
(1990) 52 Cal.3d 104, 110 [“such objections have been waived by his failure to
appear and object belowâ€].)
Unfortunately,
they have used their briefs on appeal to put forward the defenses and arguments
they apparently would have made had they appeared at the trial court hearing,
including that Karnazes suffers from
and is a consummate liar, and that they were the victims here, not Karnazes. These arguments are unsupported by any
citations to the record of the hearing, of course, since Petersen and Ferry
failed to appear. They are therefore
wholly improper on appeal (see Cal. Rules of Court, rule 8.204(a)(1)(C) [“Each
brief must [¶] . . . [¶] [s]upport any reference to a
matter in the record by a citation to the volume and page number of the record
where the matter appears. . . .â€]), and we do not consider them.
v. Summerville Senior Living, Inc. (2007) 158 Cal.App.4th 443, 448
[argument “unsupported by citations to the record . . . is deemed waivedâ€].)
The one
argument they advance that is not a challenge to the weight of the evidence,
the inferences to be drawn or Karnazes’s credibility—all challenges they
forfeited by failing to appear at the hearing—is the contention certain
language in the restraining orders is “vague.â€
They specifically refer to the directive that they are not to “disclose
any privileged information about Elizabeth Karnazes or Elizabeth Karnazes’s clients
in her law practice.†They characterize
this language as a “privilege label†that has no “standards for interpretation
and enforcement.†We disagree. The record contains ample basis to conclude
Petersen and Ferry are fully aware of the conduct they have engaged in the past
with respect to Karnazes’s confidential and privileged information, including
with respect to Karnazes’s personal health and with respect to clients for whom
Karnazes has provided legal representation, and which is now prohibited by the
restraining orders. It also bears
mention in this regard that Petersen not only holds herself out as an
experienced legal secretary, but she also worked as a legal assistant for
Karnazes. Therefore, she is well versed
on what constitutes confidential attorney-client information, and clearly has
shared with Ferry her knowledge in this regard.
IV. Disposition
The
challenged orders are affirmed.
name="_ftnref8" title="">[8] Respondent to recover costs on appeal.
_________________________
Banke,
J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Dondero, J.
reviewing the records in both appeals, we concluded limited consolidation for
and disposition was appropriate and issued an order effectuating such.
juncture, Petersen and Ferry treated the proceeding against Petersen as the
“lead†case. Petersen thus filed a
motion for consolidation, whereas Ferry filed a notice of related case in the
proceeding against him. Accordingly,
when the issue of consolidation was ultimately heard, the calendar court ruled
on and denied only one motion to consolidate, by Petersen.
