Thursday, January 25, 2018
Trial Court Must Probe Reason for Inmate’s Non-Appearance by Telephone—C.A.
Reversal of Restraining Order Is Based on Prisoner Not Participating Telephonically in Hearing Notwithstanding Lack of Indication That Appellant Had Been Precluded From Taking Part
By a MetNews Staff Writer
The Court of Appeal for this district has reversed a Domestic Violence Prevention Act restraining order forbidding an inmate to contact his ex-spouse by any means of communication because the judge did not investigate whether his failure to appear telephonically at the hearing on the application was willful.
However, the opinion, by Presiding Justice Arthur Gilbert of Div. Six, does not reflect any contention by the appellant, Paul A. Bridges, a resident of the California Correctional Institution at Tehachapi, that he did, in fact, make any effort to participate by phone at the hearing on the request by his former wife, Annie Williams.
The opinion, which was not certified for publication, was filed Tuesday. It reverses a decision by Ventura Superior Court Judge William Redmond.
At a March 27, 2017 hearing, Redmond recited that Bridges “has an order granting telephonic appearance but has failed to call in.” He heard testimony by Williams and granted the order she sought.
The matter was scheduled for 8:30 a.m. and was heard at 10:05 a.m. There was no indication of any attempt by Bridges to phone in at any point that morning.
In explaining the decision to reverse and remand, Gilbert cited the 2009 Court of Appeal opinion by the Fourth District’s Div. One in Jameson v. Desta.
There, he said, “the Court of Appeal reversed a dismissal where a prisoner failed to appear telephonically at hearings in his civil action” because “the trial court erred by not determining whether his failure to appear was willful.”
In that case, a prisoner, Barry S. Jameson, sued a medical doctor for allegedly negligent care administered in the penal institution. Court of Appeal Justice Cynthia Aaron wrote the opinion.
Gilbert quoted her statement that Jameson “made clear his desire to participate in all court proceedings” and noted that in the present case, Bridges did the same.
“The court noted,” he related, “that telephonic appearances by prisoners require special coordination between court staff and prison personnel.”
He quoted, with emphasis added, Aaron’s declaration that to “the extent that the trial court elects to rely on telephonic hearings to provide such access, the court may wish to communicate itself, telephonically and/or by letter, with prison personnel to determine what logistical arrangements are necessary” to enable Jameson “to appear telephonically, and ensure that both court staff and prison personnel make those arrangements.”
Portions Not Quoted
The opinion does not note any differences in the present factual setting from that in Jameson.
In Jameson, the court was confronted with a situation where, Aaron said, “despite a court order permitting Jameson to appear telephonically at all subsequent hearings in the case, Jameson alerted the court in at least six different filings that prison personnel were not permitting him to make such appearances.” She pointed out that “[t]he record does not indicate that the trial court inquired into any of Jameson’s numerous complaints.”
Aaron declared that “the trial court abused its discretion by choosing the ‘drastic measure’ of dismissal…without first determining that Jameson had been afforded meaningful access to the courts and that his failure to appear at required hearings was willful.”
She wrote that “Jameson tirelessly raised the issue of his lack of telephonic access to the court in letters to the trial court” and “in pleadings.” The jurist said he did so “most significantly, in documents filed in anticipation of” a case management conference and an order to show cause hearing based on non-attendance at that conference, in which he again did not participate, triggering the dismissal.
The 2009 opinion notes that Jameson argued on appeal that “he was not allowed to attend any hearing telephonically.”
Tuesday’s opinion alludes to no contention by Bridges in the trial court or on appeal that he was blocked by prison officials from making a telephonic appearance in connection with Williams’s action.
The case is A.W. v. Bridges, B282465.
Bridges appeared in pro per. Camarillo attorney Joseph E. Hohenwarter represented Williams.
Copyright 2018, Metropolitan News Company