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Court of Appeal:
Personal Service Is Required of Request for Permanent Elder-Abuse Restraining Order
By a MetNews Staff Writer
The First District Court of Appeal has reversed a permanent restraining order under the Elder Abuse and Dependent Adult Civil Protection Act because the alleged abuser, who was purportedly evading service of process, was not personally served.
Justice Gordon B. Burns of Div. Five authored the opinion, which strips septuagenarian June King of an order to attorney Cynthia Sue Hernandez, with whom she formerly had a romantic relationship, to stay away from her. The order was issued after Hernandez failed to oppose the request that a temporary restraining order issued pursuant to the Elder Abuse Act—Welfare & Institutions §15600 et seq.—be converted into a permanent order.
Reversal came because Sonoma Superior Court Judge Dana Simonds had ordered that, in light of King’s inability to effect personal service, Hernandez be served by mailing copies of the papers to her address, as listed on the State Bar website.
Sympathy for Plight
“Although we are sympathetic to King’s plight,” Burns said in Tuesday’s opinion, “we conclude that section 15657.03, subdivision (k) does not authorize substitute forms of service—even where there is evidence that the alleged abuser has evaded personal service.”
The section says:
“Upon the filing of a petition for protective orders under this section, the respondent shall be personally served with a copy of the petition, notice of the hearing or order to show cause, temporary restraining order, if any, and any declarations in support of the petition….”
Burns wrote:
“The Elder Abuse Act does not expressly allow alternative means of service at this stage of the process.”
Can’t Rewrite Legislation
He went on to comment:
“The trial court and King understandably endeavored to respond to the circumstances here—circumstances suggesting that Hernandez was purposefully evading service—through other reasonable methods of service. We note that Hernandez does not deny that she evaded service; instead, she artfully states that King did not produce ‘any substantive evidence’” of evasion, and she criticizes King for not trying harder to serve her. The bottom line, however, is that it is up to the Legislature to address the difficulty presented by a respondent who evades service. Courts may not re-write the statute.”
The opinion orders reinstatement of the temporary restraining order upon issuance of the remittitur (on March 7), to remain in effect for 21 days, to afford King an opportunity to secure a new permanent order.
Allegations of Petition
Burns provided this summary of the allegations of the petition:
“The petition alleged that, after Hernandez and King’s romantic relationship ended, Hernandez refused to move out of King’s house. Hernandez, who was an attorney, had “systematically isolated and harassed” King, including by picking the locks to King’s bedroom door and telling her she can’t have any privacy; monitoring King’s calls and text messages; installing hidden cameras around the house to surveil King; screaming at King’s visitors and accusing King of “cheating” on her; threatening to sue King and take all her assets; keeping a pit bull and a Saint Bernard dog that frighten King; and collecting and retaining the rental income on King’s rental property. King also alleged that Hernandez owned firearms and told her that she knew everything King was doing and where she was going. As a result, King feared that Hernandez would harm her.”
The case is King v. Hernandez, A160359.
State Bar Discipline
The State Bar Court’s Review Department on Sept. 9, 2014, adopted a hearing judge’s findings that Hernandez failed to competently perform services, disobeyed a court order, and failed to release a client’s file, imposing, as the judge recommended, a 30-day actual suspension.
The Hearing Department on May 18, 2015, rebuffed Hernandez’s challenge to the State Bar’s determination that she owed $15,660 in “reasonable costs” in connection with the disciplinary proceedings, except to trim the amount by $38 which the State Bar admitted was an overcharge in witness fees.
Hernandez had incurred prior discipline.
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