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Another California Domestic Violence Case Mishandled


Another California Domestic Violence Case Mishandled

The other day I wrote about a California domestic violence case where the judge made the responding party prove the allegations against her were not true and found that posting a nasty, private Facebook review was enough to impose a two-year restraining order. Not surprisingly, the judge was reversed.

Today, we look at another domestic violence case where the judge was also reserved, but for actions harmful to the party who wanted the order, not the opposing party. In today’s case, J.M v. W.T., the plaintiff obtained a temporary restraining order on January 8, 2019. The court set a hearing to decide the ultimate disposition on January 29, 2019. At that time, the judge was in a position to extend the restraining order for up to five years.

Plaintiff’s allegations were serious. He listed a litany of abuse, starting with a January 13, 2018, incident where the defendant called him a ‘”’fucking cunt’”’ repeatedly over the phone. The next month, the defendant hit plaintiff with a closed fist multiple times, leaving him with bruises on the leg and chest. That same day, during sex, defendant bit plaintiff. It is not necessary to repeat every allegation, but the last one mentioned in the Court of Appeal case occurred on March 17, 2018, about ten months before the restraining order application.

But five days before the scheduled hearing, plaintiff submitted paperwork to continue the restraining order because he had not been able to serve the defendant. This happens all the time in California domestic violence cases because service of papers must be done personally, not through the mail or email or fax. Usually, when personal service has not occurred, the judge just continues the case; keeps the restraining order in place; and orders the plaintiff to make new attempts to serve the other person.

Besides wanting the continuance because of the service problems, plaintiff wanted more time because just recently, on January 15, 2019, he learned that he was going to have medically necessary spinal surgery on January 28, the day before the hearing. The plaintiff also wrote the judge that he would be on medication after the surgery, which would impair his ability to present evidence.

On January 29, not surprisingly, plaintiff was not present when his case was called. So, the judge summarily threw the case out, saying “[t]his one is dismissed with prejudice. The most recent incident happened ten months ago, so it is dismissed with prejudice”. The judge also said that there was a special courtroom where people who knew ahead of time that they wanted continuances were supposed to file their continuance requests (as opposed to those who seek continuances on the date of the hearing) and that because the plaintiff had filed his continuance request with the judge who was going to be hearing his case and not some other random judge, that, too, was a basis for dismissal, since, apparently because of this bureaucratic policy, the papers did not get file stamped until the day of the hearing, January 29.

Not surprisingly, the court (Hon. Laura Hymowitz), was reversed. Writing for a unanimous three justice panel of the California Court of Appeal, the Hon. Dorothy C. Kim noted that there is no requirement that a continuance request be made before the hearing rather than at the hearing. That’s based on Family Code section 245, subd. (b), which allows parties to request a continuance for a multitude of reasons, on the day of the hearing or before then in writing, including but not limited to an inability to serve the papers. As the justices held, “we conclude that plaintiff demonstrated good cause for a continuance of at least a few days and the trial court thus abused its discretion by denying any continuance at all”. The appeals panel further criticized the lower court for noting that ten months had gone by since the last act, noting that “’[t]he length of time since the most recent act of abuse is not, by itself, determinative. The court shall consider the totality of the circumstances in determining whether to grant or deny a petition for relief’”. This language comes directly out of Family Code section 6301, subd. (c).

The legal issue here was the statute governing continuances of temporary domestic violence restraining orders. In the old days, only the restrained party could ask for one, unless the issue was the inability of the asking party to get the papers served in the first place. But the law has been expanded by the Legislature to protect domestic violence victims, but in any event, this case represents a complete abdication of common sense. If someone suddenly needs back surgery, is he or she not entitled to some flexibility from the court?

The post Another California Domestic Violence Case Mishandled appeared first on Andy Cook Law.

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