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On Behalf of | Mar 26, 2020 | Firm News

On January 8, 2019, plaintiff filed a request for a domestic violence protective order against defendant W.T. Plaintiff alleged that he and defendant had been in a dating relationship that included incidents of abuse. Specifically, plaintiff alleged that on December 23, 2017, defendant threw a book at plaintiff and yelled at him.

On January 13, 2018, defendant called plaintiff a “‘fucking cunt’” repeatedly over the phone.

On January 20, 2018, defendant hit plaintiff with a closed fist multiple times, leaving him with bruises on the leg and chest. That same day, during sex, defendant bit plaintiff on the right side of his torso, breaking the skin. O

n February 2, 2018, defendant sent text messages to plaintiff threatening to hurt a dog that defendant had recently adopted. Defendant was angry and jealous that the dog had chosen to lay on the couch with plaintiff instead of with defendant. On February 20, 2018, defendant drove recklessly with plaintiff in the car. Defendant also yelled at plaintiff and punched the steering wheel. On March 17, 2018, defendant demanded to be allowed into plaintiff’s condominium. After being allowed in, defendant screamed at plaintiff, blocked plaintiff’s movements, and flailed his arms. Defendant noticed plaintiff had installed security cameras and he demanded that plaintiff turn them off.

On January 8, 2019, the trial court issued a temporary restraining order against defendant. The court scheduled the DVPA hearing for January 29, 2019. (§ 242.) On January 24, 2019, plaintiff submitted a request to continue the DVPA hearing using Judicial Council Form DV-115. As to item 1, part b, plaintiff checked box one, indicating that he needed a continuance because he “could not get the papers served before the hearing date.” He also checked box four, “[o]ther good cause,” explaining that he was scheduled to undergo a medicallynecessary spinal surgery on January 28, 2019, the day before the scheduled hearing, and had not learned about the date for the surgery until January 15, 2019.

According to plaintiff, this was his second spinal surgery and he anticipated that he would “be physically unable to stand or sit for any length of time and [would] be unable to walk or care for [him]self without substantial assistance for a period of several days, as was the case with the previous surgery.” Plaintiff further explained that he would likely require medication after the surgery, which would impair his ability to competently and adequately present evidence at the hearing, including his own testimony.

On January 29, 2019, the trial court held the DVPA hearing. Neither of the parties appeared. The court dismissed plaintiff’s request for a protective order, stating: “This one is dismissed with prejudice. The most recent incident happened ten months ago, so it is dismissed with prejudice.”

The trial court also denied plaintiff’s request for a continuance and issued an order stating: “The requesting party did not appear at the January 29, 2019[,] hearing. This request was received by the [c]ourt on January 24, 2019. Request to continue a hearing prior to the scheduled hearing date must be submitted to Department 2C by way of an Ex-Parte Application.”

On March 11, 2019, plaintiff timely filed a notice of appeal of the January 29, 2019, order.

Pursuant to section 245, subdivision (b): “Either party may request a continuance of the hearing [under the DVPA], which the court shall grant on a showing of good cause. The request may be made in writing before or at the hearing or orally at the hearing. The court may also grant a continuance on its own motion.”

On these facts, the California Court of Appeal concluded that plaintiff demonstrated good cause for a continuance of at least a few days and the trial court thus abused its discretion by denying any continuance at all. (See, e.g., Cohen v. Herbert (1960) 186 Cal.App.2d 488, 492, 496 [denying a continuance of one week for defendants to prepare affidavit was an abuse of discretion].)

The California Court of Appealwill reverse and remand for the trial court to schedule a new DVPA hearing. (Ross v. Figueroa (2006) 139 Cal.App.4th 856, 868.)

See J.M. v. W.T.

If you are faced with such circumstances in a family law matter, you need a skilled and knowledgeable attorney by your side protecting all of your interests.  Contact the Law Office of Robert Rodriguez!  Call 209-596-4263 or 510-736-4033  immediately!

Robert Rodriguez has litigated dozens of cases under the California DVPA, as well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, wrongful termination, workplace and employment matters including sexual harassment, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights  discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.

* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law.  Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.  Robert Rodriguez has practiced in the State of California Court of Appeal.  No Guarantees Represented.

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