Court of Appeal:
Opinion Declares That Statute Authorizing One-Time Delay Does Not Compel Continuance Where Target of Proposed Restraining Order Has Filed Opposition but Can’t Attend Hearing
By a MetNews Staff Writer
A statute that affords a respondent in an action seeking a workplace violence restraining order the right to one continuance in order to “respond to the petition” does not mandate a time-extension to enable a “response” in the form of coming to court where the person will be out of town on the date scheduled for the hearing, Div. Five of the First District Court of Appeal has held.
“Respond,” the opinion says, necessarily connotes the filing of a responsive pleading, not making a court appearance.
The opinion, by Alameda Superior Court Judge Victor A. Rodriguez, sitting on assignment, was filed Thursday. It affirms a restraining order issued by Contra Costa County Superior Court Commissioner Cary McReynolds against Paul Rosas.
That order was sought by Rosas’s former employer, Goals for Autism, a Nevada corporation with one of its offices in San Ramon, California. It was there that Rosas had worked, as did Adryon Ketcham, for whose benefit the employer sought the order.
The petition was filed May 20, 2019; a temporary restraining order was denied on that date but a hearing on a permanent restraining order was set for June 10; Rosas was personally served with a copy of the petition and notice of hearing on June 1 (which was timely under Code of Civil Procedure §527.8(m), requiring service five days in advance of the hearing); and Rosas filed opposition on June 7.
In his opposition, Rosas, in addition to denying the allegations, advised that he was “currently out of town on a charitable bicycle ride” and could not appear on June 10. Seeking to compel a postponement of the hearing, he cited §527.8(o) which provides:
“The respondent shall be entitled, as a matter of course, to one continuance, for a reasonable period, to respond to the petition.”
On June 10, 2019, neither he nor his counsel appeared, and McReynolds issued a restraining order.
That expired June 10 of this year. Rodriguez did not discuss, in either the published portion of his opinion dealing with the continuance provision in §527.8, nor in the unpublished portion addressing other issues, the matter of mootness.
Rejecting Rosas’s contention that McReynolds had been compelled by §527.8(o) to grant a continuance, Rodriguez recited that the provision is aimed at ensuring an opportunity to “respond” to a petition and said:
“Here, Rosas filed an opposition in which he denied the allegations, argued there was insufficient evidence to support a restraining order, and contended the petition was filed for an improper purpose….Once Rosas filed his response to the petition, subdivision (o) no longer obligated the court to grant a continuance….
“To the extent Rosas argues section 527.8, subdivision (o) entitles respondents to one continuance—regardless of whether they have already responded to the petition—we disagree. Such an interpretation is inconsistent with the plain language of the statute and well-established principles of statutory construction.”
Rodriguez went on to say:
“So long as a respondent has not responded to the petition—either before or at the hearing—she is entitled to one continuance under subdivision (o). By contrast, the interpretation Rosas urges us to adopt would read the words ‘to respond to the petition’ out of the statute. Had the Legislature wanted to provide respondents with one mandatory continuance regardless of whether they had already responded to the petition, it could have done so by simply omitting the qualifying language.”
He remarked that an interpretation of the statute in a way that fosters delay could result in continued peril to the person sought to be protected,
The jurist pointed out in a footnote:
“Moreover, were we to adopt the interpretation Rosas advocates, it would have implications beyond the workplace violence context because the Legislature added identical language to various civil restraining order schemes in 2015.”
The case is Goals for Autism v. Rosas, 2021 S.O.S. 2750.
Copyright 2021, Metropolitan News Company