Drake v. Monos

Filed 3/12/07 Drake v. Monos CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

Appeal from an order of the Superior Court of Los Angeles County, Timothy Murphy, Commissioner. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Montes & Associates, Mike Montes, Jr., for Defendant and Appellant.

Robert A. Gaston, for Plaintiff and Respondent.

INTRODUCTION

After her neighbor, defendant and appellant Leonard Drake (defendant), physically beat and threatened to kill her in the garage of their apartment complex, plaintiff and respondent Margaret Monos (plaintiff) petitioned the trial court for a restraining order against defendant. Although he had notice of the hearing on plaintiffs petition, defendants attorney failed to appear on the day of the hearing. The trial court proceeded without defendants attorney, and issued a permanent restraining order that, inter alia, required defendant to vacate his residence next door to plaintiff within 60 days. The trial court subsequently denied defendants motion to set aside the restraining order under Code of Civil Procedure section 473, subdivision (b).[1]

Defendant appeals from the restraining order, arguing that the trial court denied him the statutorily required hearing and opportunity to present evidence by proceeding without his attorney. He also contends that there was insufficient evidence under the clear and convincing statutory standard to support the trial courts issuance of the restraining order.

We hold that because it is undisputed that defendant had notice of the date and time of the hearing on plaintiffs petition for a restraining order, he had a full and fair opportunity to appear and be heard. We also hold that there was substantial evidence of the claimed harassment under the clear and convincing evidence standard. We therefore hold that the trial court did not abuse its discretion in issuing the permanent restraining order, and affirm that order on appeal.

FACTUAL BACKGROUND

Defendant lived in the apartment next to plaintiffs unit in a complex located at 887 South Lucerne Boulevard, Los Angeles, California. He parked his car next to plaintiffs car pursuant to the parking assignments for the complex. At various times since defendant moved into plaintiffs complex in 2000, she saw him point at her and tell people that [she was] the woman and that some day he was going to get [her]. Within 30 days of the assault in question, defendant tried to run [plaintiff] down with his car in the apartment complexs garage on at least three occasions.

On December 7, 2005, defendant pulled plaintiff out of her car in the garage, ripped [her] hair out, punched [her] with a closed fist to [her] face, punched [her] in the head with a closed fist, beat [her] head repeatedly against the ground and bit [her]. During the assault, defendant told plaintiff that she deserved the beating that he was giving [her], that [she had] deserved [it] since [defendant] moved into the complex in 2000 and that [she] was lucky he did not get into [her] car and run over [her]. Defendant threatened to kill [plaintiff] as he beat [her] head into the concrete. Defendants boyfriend or roommate stood in the doorway of defendants unit watching the entire event.

Defendant only stopped beating plaintiff because her screams brought another person out of the complex. Defendant got into his car and drove away. Plaintiff asked for the Police and an ambulance to be called. The Police took a report and advised plaintiff to obtain an immediate restraining order.

PROCEDURAL BACKGROUND

On December 12, 2005, plaintiff filed a Request for Orders to Stop Harassment (request for orders). In addition to requesting Personal Conduct and Stay Away orders against defendant, plaintiff requested that the trial court order defendant to move out of his apartment because his unit was next to [plaintiffs] and [she was] in fear for [her] life walking through her door, getting [her] mail and going to her car each and every day. On the same day plaintiff filed her request for orders, the trial court issued a Notice of Hearing and Temporary Restraining Order. The notice set a hearing on plaintiffs request for orders for December 28, 2005. The temporary restraining order (TRO) required defendant to refrain from harassing, attacking, etc. and to stay 100 yards away from plaintiff, except at the residence where the order shall be twenty (20) feet.

On December 28, 2005, the parties stipulated through their counsel of record to continue the hearing on plaintiffs request for orders to February 7, 2006, on the condition that the TRO be reissued and remain in full force and effect. The stipulation recited that it was being entered at defendants request, due to a pending criminal hearing arising out of the same set of events as were alleged in plaintiffs request for orders. In addition to executing the stipulation, defendants counsel subsequently declared under oath that he received written notice of the February 7, 2006, continued hearing date. Pursuant to the parties stipulation, the TRO was reissued on December 28, 2005, and was to remain in effect through and including the continued hearing on plaintiffs request for orders. Despite the fact that defendant received notice of the continued hearing, the record does not contain any documents filed on defendants behalf in response to plaintiffs request for orders.

On February 6, 2006, at approximately 5:00 p.m., defendants counsel sent a letter to plaintiffs counsel by facsimile transmission requesting a continuance of the hearing on plaintiffs request for orders on the grounds that defendants criminal proceedings [were] scheduled for [the following] morning [February 7] in Department 40 of the Criminal Courts Building. According to plaintiffs attorney, she did not learn about the facsimile transmission from defendants counsel until the following afternoon, after the hearing on plaintiffs request for orders.

On February 7, 2006, plaintiffs counsel appeared at the hearing on plaintiffs request for orders, but there was no appearance on behalf of defendant. After the trial court called plaintiffs matter, her counsel stated, [Plaintiff] is before Judge Edmond.[2] Our intention was to proceed. I had not received any request for a continuance from the other side or calls of any nature. The trial court then stated since the other side is not here, Ill go ahead and grant your request. [] Were not even going to need [plaintiff]. If you present your order, Ill sign it.

The trial court issued a Restraining Order after Hearing to Stop Harassment (restraining order) that same day, February 7, 2006. In addition to imposing Personal Conduct and Stay Away orders, the restraining order required that defendant vacate the residence within thirty (60) [sic] days after service of this order. The residence includes 887 S. Lucerne, # 2, Los Angeles, CA, and all units of that complex, where plaintiff resides. Plaintiffs counsel sent defendants counsel a copy of the restraining order on February 8, 2006, and defendant was personally served with the restraining order on February 28, 2006.

On February 17, 2006, defendant applied ex parte for an order setting aside the restraining order pursuant to section 473, subdivision (b). The matter was scheduled for a hearing on the merits on April 24, 2006. A week prior to the hearing, defendant filed a further brief in support of his request that the restraining order be set aside or vacated.

At the April 24, 2006, hearing on defendants motion to set aside the restraining order, the trial courta different judge than issued the restraining orderobserved that this is an extremely difficult position for any bench officer to review what a previous bench officer has ruled on. Obviously, youre aware of that, particularly since there are criminal matters pending and those issues have not been resolved one way or the other. My particular purpose is to allow the status quo to continue, which is the whole purpose of a restraining order . . . so that will be the order of this court. The motion [to set aside or vacate the restraining order] will be denied.

On April 26, 2006, defendant filed a notice of appeal from the Restraining Order after Hearing to Stop Harassment (CLETS) of February 7, 2006.

DISCUSSION

A. Standard of Review

A permanent injunction is a determination on the merits that a plaintiff has prevailed on a cause of action . . . against a defendant and that equitable relief is appropriate. [Citation.] The grant or denial of a permanent injunction rests within the trial courts sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion. [Citation.] The exercise of discretion must be supported by the evidence and, to the extent the trial court had to review the evidence to resolve disputed factual issues, and draw inferences from the presented facts, [we] review such factual findings under a substantial evidence standard. [Citation.] We resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge all reasonable inferences to support the trial courts order. [Citation.] (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 390; see also Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912; City of Vernon v. Central Basin Mun. Water Dist. (1999) 69 Cal.App.4th 508, 516.)

B. Issues on Appeal

Defendants notice of appeal states that he is appealing from the trial courts February 7, 2006, restraining order. It does not mention the trial courts subsequent order denying defendants motion to set aside or vacate the restraining order under section 473. Moreover, defendants opening brief specifies only two issues on appeal, and each deals with the propriety of the restraining order itself. The first issue is whether the trial court denied defendant the required hearing on plaintiffs request for orders by proceeding in the absence of his counsel. The second issue is whether there was clear and convincing evidence to support the issuance of the restraining order. Defendant does not raise any issue concerning the propriety of the trial courts subsequent order denying his motion to set aside or vacate the restraining order pursuant to section 473. We must therefore limit our analysis to the issues he raises concerning the propriety of the restraining order.

C. The Trial Court Did Not Deny Defendant a Hearing on Plaintiffs Request for Orders

Defendant contends that by proceeding without his trial counsel, the trial court denied him a hearing and the opportunity to present evidence in his favor. Citing Schraer v. Berkeley Property Owners Assn.(1989) 207 Cal.App.3d 719 (Schraer), defendant argues that he was denied the procedural protections of section 527.6, dealing with temporary restraining orders and injunctions in harassment cases, including the requirements that the trial court hold a hearing, that the defendant be allowed to file a response that explains, excuses, justifies, or denies the alleged harassment, and that the trial court find by clear and convincing evidence that the unlawful harassment exists. ( 527.6, subd. (d).) Based on the record that was before the trial court on February 7, 2006, we disagree.

There is no dispute that defendants counsel had notice of the February 7, 2006, hearing. He signed the stipulation continuing the hearing to that date, and he subsequently confirmed in a declaration that he had received written notice of the continued hearing date well in advance of that date. Yet, he did not file any written opposition to the request for orders. Moreover, notwithstanding his February 6, 2006, facsimile transmission to plaintiffs counsel, there is nothing in the record to suggest the trial court was aware of defendants last minute request for a continuance. To the contrary, the record shows that plaintiffs counsel informed the trial court that she had not received a request for continuance or any telephone call from defendants counsel.

Based on the information before the trial court, including the fact that defendant had not filed any written opposition, it was not an abuse of discretion for the trial court to proceed without defendants trial counsel. The record does not reflect that defendants counsel made any effort to contact the trial court to confirm that the matter would be continued or to request a second call based on the criminal proceeding that day. Instead, defendants counsel apparently assumed that plaintiffs attorney had received his letter the prior evening and would inform the trial court of his request, and that the trial court would grant his request. But the trial court cannot be faulted for failing to grant a request for a continuance of which it was unaware. To the contrary, it was well within the trial courts discretion under the circumstances to proceed with the hearing, particularly because the TRO had been in effect for well over a month, and plaintiff had presented compelling evidence of her right to and need for a restraining order. Under these facts, we hold that defendant had notice and, therefore, a full and fair opportunity to present his case.

To the extent defendant is contending that Schraer, supra, 207 Cal.App.3d 719 prohibits a trial court from deciding a petition for an injunction under section 527.6 on declaration testimony alone, and instead requires that the trial court hear oral testimony from the parties, we reject that contention. The court in Schraer held only that, if a defendant appears at a hearing on a petition for an injunction under section 527.6 and offers oral testimony, the trial court must consider that testimony. (Id. at p. 733, fn. 6.) As the court readily acknowledged, however, an injunction may issue under section 527.6 based solely upon affidavits or declarations if no party offers oral testimony. (Ibid.) Because defendant did not appear and offer oral testimony, the trial court had the discretion to decide the petition on plaintiffs declaration testimony.

D. There Is Substantial Evidence in the Record to Support the Issuance

of the Restraining Order

Defendant contends that there was insufficient evidence before the trial court to support the issuance of the restraining order. Citing section 533dealing with the modification or dissolution of injunctionsdefendant asserts that he had a meritorious defense because he was a victim of plaintiffs alleged vile comments [about] the color of his skin and [his] sexual predilections. In making this argument, defendant seems to suggest that, had the trial court subsequently been made aware of those facts, they would have been sufficient to warrant dissolution of the restraining order under section 533.

This argument has two flaws. First, the facts upon which it is based were not before the trial court on February 7, 2006. Thus, as we have indicated, the trial court was well within its discretion to issue the restraining order based on the evidence that was before it that day. Second, even assuming arguendo those facts were subsequently and properly presented to the trial court―e.g., in connection with plaintiffs subsequent motion to set aside or vacate the restraining order―defendant is not challenging the trial courts denial of that subsequent motion on this appeal. That he may have had a defense to the request for orders that he did not present on February 7, 2006, is therefore irrelevant to the issue of whether the trial courts order was supported by the evidence that was properly before it that day.

Again, the analysis of this issue must be premised upon the facts that were before the trial court on February 7, 2006. Those facts, as set forth in plaintiffs request for orders, were submitted by plaintiff under oath and were uncontroverted. They therefore constitute substantial evidence―even under a clear and convincing standard―that defendant had threatened plaintiff in the past, tried to run her over with his car on at least three occasions within 30 days prior to the assault, brutally beaten plaintiff, and threatened to kill her during the assault. Taken together, those facts establish the requisite unlawful violence, a credible threat of violence, or a knowing and willful course of conduct under section 527.6, subdivision (b), to support the issuance of the restraining order, and confirm that the trial court did not abuse its discretion in issuing that order.

DISPOSITON

The restraining order from which defendant appeals is affirmed, and plaintiff is awarded her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P.J.

KRIEGLER, J.

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[1] All further statutory references are to the Code of Civil Procedure unless otherwise stated.

[2] Presumably, Judge Edmond was presiding over the related criminal matter referenced in the February 6, 2006, facsimile transmission from defendants counsel.