Thompson v. Bacchus
Filed 2/27/13 Thompson v. Bacchus CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
MISTY THOMPSON,
Plaintiff and Respondent,
v.
HAROUN BACCHUS,
Defendant and Appellant.
No. B234047
(Super. Ct.
No. SS020350)
APPEAL from
an order of the Superior Court
of
County. David J. Cowan,
Temporary Judge. Reversed.
Haroun
Bacchus, in pro. per., for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
___________________________________
In this case, longtime co-tenants
in a rent-controlled apartment engaged in repeated domestic disputes that
resulted in several court actions, visits by police, and, ultimately,
imposition of a one-year restraining order. One of the tenants appeals from an ex parte
order modifying the restraining order, contending his
of the ex parte procedure. We agree, and therefore reverse.
BACKGROUND
On February 2, 2011, appellant Haroun Bacchus, respondent
Misty Thompson, and respondent’s relatives, including her husband, Alexander
Yerkes, appeared before Judge Joseph Biderman at a hearing to determine whether
Thompson’s request for a restraining order against Bacchus should be
granted. We take the facts from
representations made by the parties at that hearing and from court filings.
Bacchus leased and resided in a
two-bedroom apartment in the City of Santa Monica
beginning in 1993. In 2004, Bacchus
accepted Thompson as an equal co-tenant, and she became a signatory on the
lease. Tension between Bacchus and
Thompson arose early in their co-tenancy and escalated after 2009, when Yerkes
moved into the apartment.
On January 13, 2011, Thompson obtained a
Bacchus and petitioned the trial court for an injunction to prevent
harassment. At the February 2, 2011 hearing, Thompson represented
that Bacchus was verbally abusive, physically menaced and harassed her,
habitually blocked doorways and elbowed her in the kitchen, moved her property
without permission, and once pounded on her bedroom door at 3:00 a.m.
Bacchus admitted he became upset
with Thompson and Yerkes at times but denied harassing them. He represented that Thompson and Yerkes were
intrusive, moved his property without permission, blocked his bedroom doorway,
and encroached on his portions of the common area and kitchen.
The parties represented they were incompatible as
roommates, but neither wanted to give up the leasehold, as Santa Monica’s rent
control ordinances had resulted in favorable lease terms. (See Kavanau
v. Santa Monica Rent Control Bd. (1993) 19 Cal.App.4th 730, 732 [describing
rent control in Santa Monica].)
Judge Biderman summarized his
findings as follows: “I think that—I
think that there’s been some rudeness on both sides, it appears to me that your
level of frustration is higher, emanates from a frustration that she’s still
there with her husband and you thought it was going to be a short-term
thing. You both want to have this rent
control place, it appears. [¶] Further, it appears to me that there has been
some physical contact that’s unnecessary, not something that’s going to cause
physical harm necessarily, but cause a heightened level of concern. Does it constitute harassment? Maybe.
Maybe, barely so as far as a legal standard is concerned. [¶]
Can’t get a stay-away order here.
You want an order to stop aggressive and violent outbursts? If someone wants to yell at you, they can
yell at you, say ‘I’m sick of you being here.’
I can’t say that you can’t say, ‘I don’t like living with you. I don’t like where you put your stuff in the
kitchen. I don’t like how you make
pancakes. Don’t turn the fan on.’ I can’t stop that.â€
Judge Biderman asked the parties to
draft a proposed order. Offering some
guidance to Thompson, he said, “I can’t say you can’t have an argument. He can say he doesn’t like living with
you. [¶] . . . [¶] He can say it’s my turn to use the
kitchen. If you can do it, I’d like to
see what you can put together in a proposed order and I will review that.â€
On February 2, 2011, the court
issued a one-year restraining order enjoining Bacchus from harassing,
attacking, striking, threatening, abusing, or hitting Thompson or keeping her
under surveillance or blocking her movements.
On May 31, 2011, Yerkes appeared ex parte on Thompson’s
behalf to request amendment of the restraining order to include a stay-away
order. The request was granted. As amended, the restraining order provided
that Bacchus must stay at least 100 yards away from Thompson and Yerkes and
their home and vehicles. However, the
stay-away provision ended with the language:
“This stay-away order does not prevent the person in (2) [Bacchus] from
going to or from that person’s home or place of work.â€
The expiration date of February 1, 2012, was unchanged.
Despite the provision that Bacchus
not be prevented from going to or from his home, at some point the parties
apparently came to believe he was required to move out of the apartment. He apparently did so.
On June 14, 2011, Bacchus moved ex parte to further amend the
restraining order to permit him to enter his home. That motion was denied. On June
24, 2011, Yerkes moved ex parte to amend the restraining order to
permit Bacchus to enter the apartment for two hours to remove his personal
property. That motion was granted.
Bacchus appeals from the May 31, 2011 order amending the
restraining order to include a stay-away
provision.
DISCUSSION
Bacchus contends the May 31, 2011 ex parte proceedings
violated his procedural due process rights because he was given no notice of
them. He requests that we “reverse the
trial court’s decision on the now expired stay away order.â€
No temporary restraining order may
be granted without notice to the opposing party unless it appears from facts
shown by affidavit or verified complaint that (1) great or irreparable injury
will result to the applicant before the matter can be heard on notice and (2)
the applicant certifies either that the opposing party was informed of the
proceedings or could not or for specified reasons should not be informed. (Code Civ. Proc., § 527, subd. (c).) We have reviewed the court file and find no
record of notice to Bacchus of the May
31, 2011 ex parte proceedings and no explanation why he could not
or should not have been informed of the proceedings. The May 31 order modifying the February 2
restraining order therefore exceeded the trial court’s jurisdiction, and must
be reversed.
The order was invalid on the merits
as well, for two reasons. First, when a
tenant on a lease seeks to dispossess a co-tenant she must bring a complaint
for partition. (Code Civ. Proc., §
872.010 et seq.) Such an action proceeds
according to statutes and rules governing civil actions generally, and requires
the filing of a complaint and service of summons. (Code Civ. Proc., §§ 872.030, 872.230,
872.310.) Here, by re-modifying the May 31, 2011 modification of the
February 2 restraining order to permit Bacchus access to the apartment for two
hours, the trial court implicitly endorsed the parties’ misconception that the
May 31 modification disposed Bacchus of his leasehold rights. Such dispossession cannot occur in ex parte,
un-noticed injunction proceedings.
Therefore, to the extent the May 31 order dispossessed Bacchus of his
co-tenancy, it was invalid.
Second, the May 31 order was
invalid because Yerkes had no standing to seek it. Yerkes was neither a co-tenant with Bacchus
nor a party to the proceedings. Nor was
he Thompson’s attorney, a fact of which we take judicial notice after having
consulted the State Bar of California website.
Yerkes was Thompson’s guest. As
such, he had no standing to seek an order that would, apparently by common
misconception, evict Bacchus from his own apartment.
For both these reasons, the May 31
order was improper.
DISPOSITION
The trial
court’s May 31, 2011 order
modifying the February 2, 2011
restraining order is reversed.
NOT TO BE
PUBLISHED.
CHANEY,
J.
We concur:
MALLANO, P. J. ROTHSCHILD,
J.
name="_ftn1" title=""> [1] In the actual restraining order, the “2†has a
circle around it. We substitute
parentheses for the circle.
