Castaldi v. Gunnell

Filed 9/6/06 Castaldi v. Gunnell CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from orders of the Superior Court of Los Angeles County. Irving S. Feffer and Elizabeth A. Grimes, Judges. Reversed and remanded for further proceedings.

Scott, Arden & Salter and James Ellis Arden for Defendant and Appellant.

Law Offices of Claudia C. Bohorquez and Claudia C. Bohorquez for Plaintiff and Respondent.

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In this second appeal in this litigation, defendant and appellant Ross Gunnell (Gunnell) challenges (1) a trial court order issuing an injunction against him, pursuant to Code of Civil Procedure section 527.6,[1] following the issuance of a remittitur; and (2) a subsequent trial court order denying his motion for relief pursuant to section 473, subdivision (b). He argues that because his attorney of record was not given notice of the hearing on plaintiff and respondent Tina Castaldi's (Castaldi) petition for an injunction, that order should be set aside. Alternatively, he contends that the trial court erred in denying his motion for relief on the grounds that he demonstrated mistake, inadvertence, surprise, or excusable neglect, namely the trial court's failure to give him proper notice of the hearing on Castaldi's petition for an injunction.

We agree that the trial court erred in denying Gunnell's motion for relief. We conclude that the trial court failed to provide Gunnell's attorney of record with notice of the hearing on Castaldi's petition for an injunction. As such, Gunnell established surprise pursuant to section 473, subdivision (b). It follows that his motion for relief should have been granted and the order issuing the injunction set aside. Thus, we reverse the trial court's June 16, 2005, and October 17, 2005, orders and remand the matter for a rehearing on Castaldi's petition for an injunction, with proper notice to all parties.

FACTUAL AND PROCEDURAL BACKGROUND

Castaldi files a petition for an injunction

On April 30, 2004, Castaldi filed a petition for an injunction pursuant to section 527.6 against Gunnell. Gunnell, represented by Christine C. Lyden and the Law Offices of Christine C. Lyden (Lyden), located at 6400 Canoga Avenue in Woodland Hills, filed a response to Castaldi's petition. A temporary restraining order issued, and a hearing was scheduled for May 2004.

The first hearing on Castaldi's petition

Two days of hearings were held in May, with Matthew E. Jackson (Jackson)[2] appearing on Gunnell's behalf. The following evidence was presented:[3] Castaldi is a personal trainer who conducts exercise sessions with groups of students in the mountains of the City of Burbank (Burbank). She conducts sessions for one and one-half hours beginning approximately at 5:00 a.m. (Castaldi v. Gunnell, supra, B176841, [nonpub. opn.], at pp. 2–3.)

Gunnell lives in the Burbank home of his girlfriend, Zorica Tanaskovic (Zorica). On January 26, 2004, Gunnell approached two of Castaldi's students in the street. He cursed them and complained about the noise. Castaldi drove up. She apologized to Gunnell about the noise and instructed the students not to go near Gunnell's home anymore. The next day, Castaldi wrote an apology and dropped off copies in the neighborhood. (Castaldi v. Gunnell, supra, B176841, [nonpub. opn.], at p. 3.)

At approximately 5:00 a.m. on March 17, 2004, Gunnell approached Castaldi, who was standing in a parking lot where her group works out. Gunnell stood very close to Castaldi and screamed at her. He swore at Castaldi and said he knew where she lived. Castaldi felt afraid and called 911.

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