Drake v. Monos
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).
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.
Court 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. Court also hold that there was substantial evidence of the claimed harassment under the clear and convincing evidence standard. court therefore hold that the trial court did not abuse its discretion in issuing the permanent restraining order, and affirm that order on appeal.
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