Pennell v. Green
Filed 6/18/08 Pennell v. Green CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ZONNA MAY PENNELL, Petitioner and Appellant, v. PHILLIP L. GREEN, Defendant and Respondent. | D052078 (Super. Ct. No. 37-2007-00074994) |
APPEAL from an order of the Superior Court of San Diego County, Rafael A. Arreola, Judge. Reversed.
Zonna May Pennell petitioned the trial court for a restraining order under Code of Civil Procedure section 527.6; Phillip L. Green opposed the petition without filing a cross-complaint. At the close of proceedings, the trial court issued mutual restraining orders. Pennell claims that the trial court erred in granting a restraining order against her. We agree and reverse the order.
FACTUAL AND PROCEDURAL BACKGROUND
Pennell sought a temporary restraining order and injunction against Green, alleging that he had threatened her with violence. The trial court issued a temporary restraining order and set the matter for hearing. The day before the hearing, Green filed an answer denying the allegations. After hearing testimony from the parties and two witnesses, the trial court issued mutual restraining orders. The trial court denied Pennell's reconsideration motion and she timely appealed from the order issued against her.
DISCUSSION
Pennell claims that the trial court abused its discretion when it issued an injunction against her. We agree.
A person who has suffered harassment may seek an injunction and the defendant may file a response to the allegations and a cross-complaint seeking affirmative relief. (Code Civ. Proc., 527.6, subd. (d).) Here, Green did not file a cross-complaint seeking injunctive relief, nor did he request a restraining order against Pennell during the hearing. Accordingly, the trial court abused its discretion in granting the order against Pennell because it deprived her of notice and an opportunity to respond to any specific charges. (Kobey v. Morton (1991) 228 Cal.App.3d 1055, 1059-1060 [abuse of discretion and violation of due process to impose mutual injunctions in absence of cross-complaint]; Schraer v. Berkeley Property Owners' Assn. (1989) 207 Cal.App.3d 719, 730 [setting forth due process procedural safeguards for the party to be enjoined].)
Finally, although Pennell correctly argues that Green was required to file and deliver his answer no later than 48 hours before the hearing (Cal. Rules of Court, rule 3.1152(d)), she waived this issue by not objecting below, and in any event, she suffered no prejudice. (Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 113.)
DISPOSITION
The order granting a harassment injunction against Pennell is reversed.
McINTYRE, J.
WE CONCUR:
HUFFMAN, Acting P.J.
HALLER, J.
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