Monday, December 5, 2011
Court Vacates Protective Order Awarded to Assaulted Lawyer
Panel Says Opposing Party in Long-Running Dispute Was Denied Due Process
By SHERRI M. OKAMOTO, Staff Writer
The First District Court of Appeal on Friday vacated a protective order entered in favor of an Oakland attorney, who said she was attacked by the opposing party in an ongoing dispute with her client over possession of certain commercial property.
Div. Three, in an unpublished decision, concluded Mario Juarez had been denied a fair hearing and due process of law during the proceedings on Sandra Raye Mitchell’s request for an injunction prohibiting harassment.
Mitchell represented the owners of a commercial property in an unlawful detainer suit and a federal action against Juarez.
She claimed that last Sept. 21 she encountered Juarez trespassing on the property while she was “conducting business related to the property and the litigation.” Mitchell said Juarez pushed her, hit her in the side, arm, and face, and tore her clothes “by ripping open the front and ripping off the buttons.”
The attorney declared that was afraid to return to the property, and this “severely limits [her] ability to service [her] clients.”
Mitchell contended Juarez intended to intimidate her because the litigation was “enter[ing] another phase of contentiousness,” and that after this incident, she received harassing phone calls from Juarez’s associates.
Juarzed had also filed a petition seeking a protective order against Mitchell, which he filed the same day she did, earlier in the day.
He asserted that he found Mitchell “in my warehouse area,” and that when the attorney saw him, she started screaming that he was trespassing. When he tried to walk around her, Juarez said she stepped towards him and hit his forehead with her fist.
An Alameda Superior Court judge granted both Mitchell and Juarez a temporary restraining order, and set a hearing date at which both cases would be heard together.
Shortly before the hearing, Juarez filed an unsigned declaration stating that, during the litigation, Mitchell had attempted several improper lockouts and that she hit him in the head with a closed fist during a lockout attempt on Sept. 21.
He denied hitting Mitchell and attached the results of a polygraph test purporting to confirm that Mitchell struck him but that he never had any physical contact with her.
In addition, he submitted a declaration from one of his employees indicating that she heard loud noise from the warehouse area and called “Cecilia” to walk to the back with her. The employee and Cecilia then allegedly saw Juarez walking away from Mitchell, who was yelling into the phone “ ‘Mario hit me and ripped my clothes off’ as she was “ripping her own cloths [sic] off and hitting herself.”
At the hearing last November, the judge questioned Mitchell about the basis for her petition, but did not question Juarez or hear from his witnesses, and no formal testimony was taken.
The trial judge then issued a minute order prohibiting Juarez from “[h]arass[ing], attack[ing], strik[ing], threaten[ing], assault[ing] (sexually or otherwise), hit[ting], follow[ing], [or] stalk[ing]” Mitchell. The judge further said Juarez could not communicate with Mitchell, “directly or indirectly” by telephone, message, mail or email.
No Opportunity to Rebut
Writing for the appellate court, Justice Martin J. Jenkins said the trial court’s order was an abuse of its discretion since “Juarez was subjected to court-ordered restriction of his conduct without an opportunity to present evidence in his defense or rebut adverse testimony.”
He said the trial court had failed to afford Juarez his “basic due process protections” since “it did not question Juarez directly, provide him an opportunity to testify in his own defense, or hear from his witnesses, who…were present in the courtroom and prepared to testify.”
Presiding Justice William R. McGuiness and Justice Stuart R. Pollak joined Jenkins in his decision.
The case is Mitchell v. Juarez, A130584
Copyright 2011, Metropolitan News Company