Marriage of Hamilton
Filed 10/7/08 Marriage of Hamilton CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
In re the Marriage of DEAN and ROSA HAMILTON. | H031932 (Santa Clara County Super.Ct.No. FL125119) |
DEAN HAMILTON, Appellant, v. ROSA HAMILTON, Respondent. | ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN THE JUDGMENT |
It is hereby ordered that the opinion filed herein on September 17, 2008, be modified as follows:
On page 11, following the first full paragraph, ending with testify, add the following six new paragraphs:
Dean argues that the trial court was required under section 243, subdivision (e) (hereafter, section 243(e)) to grant a continuance of the hearing on Rosas TRO application. He cites Ross v. Figueroa (2006) 139 Cal.App.4th 856, in support of the claim that a continuance was a matter of right and that therefore the denial of the request constituted a denial of due process.
Under section 243, subdivision (b), if a temporary restraining order is granted pursuant to section 240 without notice pending hearing, the applicants papers must be served upon the responding party at least five days before the hearing. Under those circumstances, section 243(e) provides that the responding party is entitled, as of course, to one continuance for a reasonable period, to respond to the application for the order.
Deans claim that he was entitled to a continuance under section 243(e) is without merit. First, at no time below did his attorneys invoke section 243(e) in arguing that he was entitled to a continuance. (Cf. Ross v. Figueroa, supra, 139 Cal.App.4th at pp. 864-865 [court loath to conjure a waiver or forfeiture of entitlement to continuance under 243(e), where respondent was in pro per and had little understanding of proceedings].) Implicitly, Dean appears to have abandoned below any sought-after continuance once it became clear that the reason for itto afford him the opportunity to present Christensens live testimonydisappeared by reason of the courts exclusion of that testimony.
Second, Dean claims that he was denied a continuance that he was entitled to as of right under section 243(e) to respond to the application for the order. This argument ignores the fact that Dean filed substantive opposition to the TRO request in April 2005, years before he made the application to continue.
Third, his argument fails to acknowledge that the hearing ultimately took place more than two years and five months after the TRO initially issued, and thatas the trial court notedthere were multiple continuances of the hearing over a period of years to which the parties stipulated. The circumstances of this caseone which the trial court observed as being stalewere hardly those for which the respondents right to a continuance under section 243(e) was intended to address, namely, a respondent being afforded a sufficient opportunity to gather evidence to oppose a restraining order request.
In Ross v. Figueroa, supra, 139 Cal.App.4th at pages 859-860, the respondent in pro per on the day of the noticed hearingwhich was 21 days after issuance of the TROmade a request for continuance specifically to obtain more time to oppose the application. He indicated that he needed additional time to obtain an attorney and, based upon an erroneous reading of the papers served on him, had not figured how to get his response and accompanying written evidence served on [the petitioner] without violating the TROs prohibition against sending any written communications to her. (Id. at p. 860.) The Ross court held that the respondents continuance request should have been granted under section 243(e). (Ross v. Figueroa, supra, at pp. 863-865.) In so concluding, the court noted that section 243(e) provides respondents are entitled as a matter of right to a continuance when they first appear at a hearing where a permanent order is being considered, if but only if the temporary order was issued without notice. This is to allow the respondent reasonable time to respond to the applicants grounds for seeking the protective order. (Ross v. Figueroa, supra, at pp. 861-862, fn. omitted.) Here, obviously, the continuance request was made long after Dean initially appeared, was made by his counsel, and was not based upon the inability to present timely opposition to the application. Under these circumstances, Dean was not entitled as of right to a continuance of the TRO hearing under section 243(e), and Ross v. Figueroa, supra, 139 Cal.App.4th 856 does not compel a conclusion to the contrary.
On page 11, strike the second full paragraph (starting with Based) in its entirety, and replace with the following paragraph:
Based upon the nature of the proceedings involved and the offer of proof concerning Christensens anticipated testimony, we conclude that the court did not abuse its discretion by excluding the testimony of any proposed experts, including Christensen. We hold further that the court was not compelled to grant a continuance of the hearing under section 243(e), denial of the continuance did not deprive Dean of due process, and the courts denial of the continuance request was not an abuse of discretion. We therefore reject Deans claim that the TRO must be reversed.
The petition for rehearing by appellant is denied.
There is no change in the judgment.
Dated:
Duffy, J.
Mihara, Acting P.J.
McAdams, J.
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