Friday, March 27, 2020
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Commissioner Erred in Denying Continuance to Man Scheduled for Spinal Surgery—C.A.
By a MetNews Staff Writer
The Court of Appeal for this district has reversed an order denying a domestic violence restraining order because Los Angeles Superior Court Commissioner Laura Hymowitz refused to grant a continuance to the plaintiff who had advised the court he would be unable to attend the scheduled hearing because his spinal surgery had been set for the previous day.
Div. Five on Wednesday directed that “[i]f plaintiff still desires a protective order, the court shall set a new hearing date.”
Plaintiff Justin McLaughlin’s filed a petition for a domestic violence restraining order, directed to William Liam Tressler, Jan. 8, 2019, and that day, a temporary restraining order was issued and a hearing was set for Jan. 29. On Jan. 24, the plaintiff filed a form requesting a continuance, indicating that he had been unable to serve Tressler and that he did not learn until Jan. 15 that surgery was scheduled for Jan. 28.
On Jan. 29, Hymowitz called the matter, and declared:
“This one is dismissed with prejudice. The most recent incident happened ten months ago, so it is dismissed with prejudice.”
Unable to Walk
In announcing the reversal, Justice Dorothy Kim wrote:
“Plaintiff’s declared reasons for requesting a continuance were: that he had been unable to serve defendant prior to the hearing date; that he would be undergoing necessary spinal surgery the day before the hearing; and that as a result of the surgery, he would be unable to walk or care for himself for a period of several days.”
The jurist continued:
“Further, plaintiff explained that his surgery had not been scheduled until January 15, 2019. In other words, this was an unforeseen circumstance. On these facts, we conclude 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.”
Delay Not Determinative
Kim declined to act on McLaughlin’s request that the appeals court find that good cause was shown for issuance of the order he sought. She did, however, respond to Hymowitz’s notion that the petition was untimely, pointing out that Family Code §6301(c) says:
“The length of time since the most recent act of abuse is not, by itself, determinative. The court shall consider the totality of the circumstances in determining whether to grant or deny a petition for relief.”
The case is J.M. v. W.T., 2020 S.O.S. 1409.
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