Filed 11/30/18 Esmail v. Abualrob CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
| ALEX ESMAIL,
Plaintiff and Appellant,
v.
SAWSAN ABUALROB,
Defendant and Respondent.
|
G054961
(Super. Ct. No. 16V002466)
O P I N I O N |
Appeal from an order of the Superior Court of Orange County, Layne H. Melzer, Judge. Affirmed. Motion for request for judicial notice denied.
Alex Esmail, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
* * *
Alex Esmail appeals from an order setting aside a permanent restraining order he obtained against Sawsan Abualrob. The trial court set aside the order after concluding Abualrob was not served with either the notice of the hearing at which it was imposed, or Esmail’s application for the restraining order.
Esmail contends the court erred because it is undisputed Abualrob was served with the temporary restraining order issued against her, which included the date of the hearing at which the permanent order was to be issued. He consequently contends she had sufficient notice of that hearing date.
We affirm the set aside order. While it is true the temporary restraining order includes a section notifying Abualrob that it will expire at the conclusion of the hearing scheduled for “10-25-16” at 8:30 a.m., it says nothing about the possible issuance of a permanent restraining order at that same hearing. Consequently, it does not qualify, technically or substantively, as notice of Esmail’s application for the permanent restraining order. Moreover, Esmail does not address his failure to serve the application for the restraining order on Abualrob, which effectively concedes that omission was a sufficient basis for the set aside order.
FACTS[1]
Esmail obtained a temporary restraining order against Abualrob on October 4, 2016. The order states on its face that it expires “at the end of the hearing” set for October 25, 2016, at 8:30 a.m.
When the court granted the temporary restraining order, it also issued a separate order entitled “Notice of Court Hearing,” which stated, among other things, that the court might issue a restraining order against Abualrob “that could last up to five years” at the October 25 hearing. It also advised Abualrob of her right to respond in writing to the request for a restraining order and encouraged her to “go to the court hearing if you want the judge to hear from you before making orders.”
Esmail arranged for a friend to personally serve Abualrob with the temporary restraining order (which was in fact served), but he did not have her served with either his application for a permanent restraining order or the court’s Notice of Hearing order.
Abualrob did not appear at the hearing on October 25, 2016, and the court issued the requested restraining order against her, effective for a period of three years. After Abualrob learned of the three-year restraining order, she moved to have it set aside on the ground she was not served with Esmail’s application for the restraining order or the court’s Notice of Hearing.
Following an evidentiary hearing in February 2017 at which Esmail’s friend testified that he served Abualrob with the temporary restraining order, but no other documents, the court granted the motion. As the court explained to Esmail: “Even if I believe 100 percent your evidence, I need to set this aside because your evidence showed that she didn’t get the application or the notice of the hearing.”
DISCUSSION
Esmail’s sole contention in this appeal is that the trial court erred in setting aside the restraining order because the “Court Hearing Information is systematically built into the structure of the [temporary restraining order] form. It is place[d] in a segmented section at the bottom of the form specifically for notification purposes. By acknowledging receipt and service of the form (DV-100) in and of itself, the Respondent was in fact served and put on notice regarding Petitioner’s Domestic Violence Protection Order.” We cannot agree.
While it is true the temporary restraining order includes a section identifying the hearing date on October 25, 2016, it references that hearing for the sole purpose of stating the temporary order issued on October 4, 2016 will expire at its conclusion. The order says nothing about the possible issuance of a permanent restraining order at that same hearing. Nor does it advise Abualrob of her right to file a response in writing, or that she should appear at the hearing if she wishes to oppose the issuance of a permanent restraining order against her. Instead, all of that information was included in the separate Notice of Hearing order issued by the court in conjunction with its grant of the temporary restraining order, which Esmail did not serve.
Consequently, the temporary restraining order does not qualify as effective legal notice of Esmail’s application for a permanent restraining order to be issued on October 25, 2016. Thus, the trial court had no choice but to set aside the permanent restraining order when it learned Abualrob had not been served with the Notice of Hearing. “It is fundamental to the concept of due process that a defendant be given notice of the existence of a lawsuit and notice of the specific relief which is sought in the complaint served upon him. The logic underlying this principle is simple: a defendant who has been served with a lawsuit has the right, in view of the relief which the complainant is seeking from him, to decide not to appear and defend. However, a defendant is not in a position to make such a decision if he or she has not been given full notice.” (In re Marriage of Lippel (1990) 51 Cal.3d 1160, 1166.)
Esmail’s argument also ignores the trial court’s finding that he failed to serve Abualrob with his application for the permanent restraining order. His failure to serve Abualrob with that application means she had no information about the specific allegations made against her, or about the evidence Esmail was relying upon to support the requested restraining order. It is difficult to conceive of a more fundamental due process violation. The fact that Abualrob may have later learned the specifics of Esmail’s allegations against her does not alter our analysis. (See Katzin v. Workers’ Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 711 [“Due process requires that all parties ‘must be fully apprised of the evidence submitted or to be considered’”].)
Moreover, by failing to address that point in his brief, Esmail effectively concedes that his failure to serve the application provided sufficient justification, in and of itself, for the order setting aside the restraining order. “Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) “When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784‑785].)
DISPOSITION
The order is affirmed.
GOETHALS, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ARONSON, J.
[1] Esmail has requested that we take judicial notice of two documents reflecting a nullity ruling in a related marital dissolution action, and a document reflecting a small claims ruling arising out of a related immigration matter. We deny the request on the basis the documents are irrelevant to our analysis on the sole issue which is the subject matter of this appeal.
