Opinion
A168081
03-19-2024
N.M., Plaintiff and Respondent, v. W.K., Defendant and Appellant.
W.K., in pro. per., for Respondent and Appellant Cabello & Lezin, Connie Cabello, Justyn Lezin, Oakland; and Law Office of Peter Gold, Peter Gold for Plaintiff and Respondent
Trial Court: Alameda County Superior Court, Trial Judge: Hon. Nikki Clark, Commissioner (Alameda County Super. Ct. No. HF23137250)
W.K., in pro. per., for Respondent and Appellant
Cabello & Lezin, Connie Cabello, Justyn Lezin, Oakland; and Law Office of Peter Gold, Peter Gold for Plaintiff and Respondent
TUCKER, P.J.
Defendant, W.K. (Husband), appeals after the trial court issued a domestic violence restraining order (DVRO) protecting plaintiff, N.M. (Wife), and the couple’s daughter. In the published portion of our opinion we address the following question: When a petitioner seeks a domestic violence restraining order, is a respondent who has already responded to the petition entitled to a continuance of the hearing on the request "as a matter of course"? (Fam. Code, § 245, subd. (a).) We conclude that the trial court did not have a mandatory duty to grant a continuance under these circumstances, and we further conclude that it did not abuse its discretion in proceeding with the hearing.
In the unpublished portion of our opinion, we reject Husband’s remaining challenges to the DVRO, we deny Wife’s request that we dismiss the appeal, and we deny the parties’ respective requests for sanctions. We therefore affirm.
BACKGROUND
I. DVRO Request and Orders
Wife filed a request for a DVRO on February 6, 2023, protecting herself and the couple’s child, Nyla, from Husband. She alleged a number of incidents of domestic abuse. Among them, Wife alleged that in October 2022, during an argument and in the presence of then two-year-old Nyla, Husband slapped Wife and punched her head and body, rendering her unconscious. She also described an incident a couple of weeks later, when Husband closed the car door on her legs as she was trying to take Nyla out of her car seat, and an incident on February 5, 2023 when Husband, who was no longer living in the couple’s home, tried to break into the house. An earlier alleged incident took place in 2020, when Wife was pregnant. Husband slapped her across the face so hard she was knocked out; when she regained consciousness he was dragging her across the floor. He grabbed her face, threatened her, and told her to respect him. She suffered a black eye as a result.
Wife provided a declaration that attached photographs of her injuries after the October 2022 incident and subsequent text messages between her and Husband. Those messages included Husband telling her he "didn’t hit [her] hard at all." In another series of text messages, Wife accused him of hitting her in front of Nyla, causing injuries to her head, and threatening to kill her, and he replied, "I apologize … like I said I’m not proud of what happened."
The trial court issued a temporary restraining order on February 7, 2023, requiring Husband to stay away from Wife and Nyla, except for court-ordered visits. Wife was given custody of Nyla, and Husband was granted unsupervised visits three times a week.
At a March 15, 2023 hearing, Husband was represented by counsel. Wife requested a continuance so she could seek counsel of her own. Husband’s counsel objected, saying Wife was ready to proceed with the merits of the petition. The trial court continued the hearing to April 4, and Husband’s counsel urged that no further continuances be granted.
Husband filed a response to the DVRO request on March 29, 2023, in which he asserted that Wife’s allegations were "exaggerated," that he had not abused her, and that he posed no threat to her.
Wife filed a supplemental declaration in support of her request for a DVRO on March 30, 2023, which Husband’s counsel received the following day. Wife stated that Husband demanded deference, citing their religious tradition, and became enraged and beat her, sometimes to unconsciousness, if he thought she " ‘misbehaved.’ " She detailed regular physical abuse that began shortly after their marriage in 2013, which included reckless driving while she was a passenger, at least one death threat, and slaps and punches, often accompanied by demands for respect. She also attached copies of additional text messages between the two in which Husband told her she must obey and respect him and "fall in line," told her she did not have "authority" to decide to divorce him, acknowledged hitting her "to knock some sense in [her] head," said she had to be "treated with acute stimulation for the information to be transmitted," and said he had a "[G]od given right to discipline" her if she "disrespect[ed]" him. She also submitted a declaration by a former neighbor who had heard "terrifying arguments" in which Husband became enraged and shouted abusive language at Wife, and on one occasion in May 2014 heard "the distinct sounds of blows to flesh" during an argument.
The continued hearing on the DVRO took place on April 4, 2023. Before it began, Husband’s new attorney requested a continuance, arguing that there would be multiple witnesses and that Husband would like to introduce "the totality of the text messages" rather than the "snippets" Wife had submitted. The trial court explained that a single incident of domestic violence would be sufficient to support a DVRO, concluded multiple witnesses would be unnecessary for Wife to meet that burden, and declined to continue the hearing. The court indicated it would disregard the declaration of the neighbor, who was not present at the hearing. At the hearing, Wife testified to years of domestic abuse over the course of the marriage, culminating in the incident in October 2022 when Husband beat her to unconsciousness in the presence of Nyla.
Husband painted a different picture in his testimony, characterizing Wife as emotionally volatile and himself as merely responding to her aggressiveness when he hit or pushed her. He explained away Wife’s loss of consciousness as the result of a medical condition that caused sleepwalking and fainting. According to Husband, during the October 2022 incident, Wife attacked him with a knife while holding Nyla. He acknowledged he had written the text messages, but he said they were "cherry picked" and taken out of context, and he denied ever hitting or slapping her.
The trial court found Wife’s testimony credible and Husband’s explanations not credible, it found it was more likely than not that Wife’s injuries were caused by Husband striking her rather than by falling and fainting, and it concluded the text messages alone were sufficient to provide a basis for the DVRO. The court issued a restraining order for three years. Wife retained custody of Nyla, with supervised visitation twice a week for Husband.
See footnote *, ante.
DISCUSSION
See footnote *, ante.
II. Mandatory Continuance to Respond to DVRO Petition
Husband contends the trial court erred in denying his request for a continuance, to which he argues he was entitled as a matter of right. He relies on section 243, which requires a respondent to receive notice at least five days before an ex parte hearing on a petition for a temporary restraining order, and on section 245, subdivision (a), which provides that a respondent is "entitled, as a matter of course, to one continuance for a reasonable period, to respond to the petition."
We are unpersuaded by Husband’s reliance on either of these provisions. As to section 243’s requirement of five days’ notice of a hearing on a DVRO application, Husband had notice of the hearing much more than five days before it took place. He cites no authority suggesting Wife’s supplemental declaration would restart section 243’s five-day clock. Section 245 is of no more assistance to Husband. By the time he requested a continuance, he had already responded to the petition. In an analogous context, another division of this court held that a virtually identical provision governing workplace violence restraining orders does not entitle a respondent to a continuance after having responded to a petition for a restraining order. (Goals for Autism v. Rosas (2021) 65 Cal.App.5th 1041, 1044 [discussing Code Civ. Proc, § 527.8, subd. (p)].) In the course of its analysis, the court noted the similarities between the provisions governing continuances of hearings on workplace and domestic violence restraining orders, and explained that the language of section 245, subdivision (a) "underscores that the purpose in enacting the mandatory continuance provision was to give respondents an opportunity to respond to the allegations in the petition for the restraining order." (Goals for Autism, at p. 1047.) We similarly conclude that, having already responded to Wife’s petition, Husband was not entitled "as a matter of course" to a restraining order to allow him "to respond to the petition." (§ 245, subd. (a).)
III. Discretionary Continuance
[3, 4] Subdivision (b) of section 245 separately authorizes the trial court to grant a request for continuance "on a showing of good cause." (Malinowski v. Martin (2023) 93 Cal.App.5th 681, 691-692, 311 Cal.Rptr.3d 200.) Such a continuance is discretionary rather than mandatory. (Id. at p. 692, 311 Cal.Rptr.3d 200.) When, as here, "[a] motion for continuance is addressed to the sound discretion of the trial court," we reverse if denial of a continuance denied the applicant a fair hearing. (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395, 16 Cal.Rptr.3d 638.)
[5] The trial court’s denial of a continuance did not deprive Husband of a fair hearing. Husband had already declared himself prepared to proceed at the March 15, 2023 hearing, when the matter was continued over his objection. He was aware at least four days before the April 4 hearing that the text message exchanges between himself and Wife would be at issue, and he makes no showing that the lack of a continuance deprived him of adequate time to make a showing of their full context. Indeed, in cross-examining Wife, Husband’s counsel confronted her with a photograph that he claimed refuted her claim that he struck her on October 4, 2022, and in his own testimony Husband provided context for the text messages. The trial court did not consider the neighbor’s declaration, obviating any need for Husband to prepare to meet that evidence. In these circumstances, we see no abuse of discretion in the trial court denying his request for a continuance.
See footnote *, ante.
DISPOSITION
The April 4, 2023 order, and the May 18, 2023 order denying rehearing, are affirmed. Respondent shall recover her costs on appeal.
WE CONCUR:
PETROU, J.
RODRIGUEZ, J.