Metropolitan News-Enterprise


Friday, May 12, 2023


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C.A. Says Judge Abused Discretion in Barring Testimony Because Lawyer Was Tardy


By a MetNews Staff Writer


Div. Three of the First District Court of Appeal decided yesterday that a judge abused her discretion in refusing to hear testimony by a defendant in an action to impose a civil harassment restraining order on him because his lawyer, who was handling matters in another courtroom, showed up 32 minutes late.

The unpublished opinion by Justice Ioana Petrou reverses an order by San Mateo Superior Court Judge Susan L. Greenberg, pursuant to Code of Civil Procedure §527.6, granting a permanent restraining order in favor of Andrea Vanessa Villata Lopez and against Henry David Chicas.

Greenberg commenced the hearing in Department 3 at 9:30 a.m. on June 14, 2022. Greenberg told Chicas’s lawyer, Diana Passadori of Redwood City, that because she was not present when the case was called at 9 a.m. by the presiding judge, Leland Davis III, and “did not arrive until 9:32 this morning” in Department 3, “your client will not be permitted to be part of the proceedings this morning as not having timely appeared.”

Lawyers Explanation

Passadori, a certified family law specialist, protested:

“Your Honor, Mr. Chicas was sitting outside...of Judge Davis’ courtroom. He was not sure if he was permitted to go in due to the COVID rules.

“I was in court on the fourth floor...for five pretrials that started at 8:30. I permitted a colleague of do her pretrials ahead of mine because she was concerned about being sent out to trial in front of Judge Davis at 9 a.m.

“So I let her go ahead of me which then caused me to be late, your Honor.”

(According to her brief on appeal, Passadori “asked a colleague to inform the court that she would be delayed.”)

Unpersuaded, Greenberg heard from Lopez but not Chicas.

Petrou’s Opinion

“Chicas contends the trial court’s refusal to allow him to participate in the hearing denied him due process as well as his statutory right to present relevant evidence,” Petrou wrote. “Without addressing the due process contentions, we conclude the trial court erred by denying Chicas the ability to present relevant testimony as required by section 527.6.”

She pointed out that §527.6(g) provides that “a hearing shall be heard on the petition” and that, under §527.6(i), “the judge shall receive any testimony that is relevant” at that hearing.

Petrou added that case law shows “that where a defendant to a request for a restraining order in a civil harassment proceeding offers relevant testimony on his or her behalf, the trial court must allow such testimony to be heard.”

Statutory Provisions Disregarded

The justice commented:

“Here, this did not happen. Contrary to the express requirements of section 527.6, the trial court expressly refused to allow Chicas to participate in the hearing as he was not allowed to proffer relevant testimony and not allowed to cross-examine Lopez. Chicas and his attorney were both present in the courtroom at the time of the hearing, and counsel implored the court that there was significant and salient testimony the court needed to consider that she averred contradicted and undermined Lopez’s credibility. In allowing Lopez to testify as to the veracity of her petition while depriving Chicas of his right to defend, the court neglected the statutory safeguards the Legislature built into the statute.”

She continued:

“Chicas and his counsel’s apparent tardiness to the hearing when it was initially called at 9:00 a.m. does not compel a different result. While we acknowledge that courts generally retain jurisdiction to control proceedings, this is not a situation, for example, where a litigant and his counsel showed up after a hearing had already concluded. At the hearing during which Lopez’s petition was actually adjudicated, Chicas and his counsel were present in the courtroom and prepared to participate.”

Petrou said in as footnote:

“We do not endorse or excuse counsel’s failure to timely appear and agree with Judge Greenberg that counsel’s failure to communicate directly with the court regarding the unanticipated tardiness was not acceptable.”

The dispositional paragraph reads:

“The permanent restraining order is reversed.  The temporary restraining order is reinstated to remain in effect until 21 days after issuance of the remittitur, unless earlier terminated or extended by order of the trial court.  The trial court is directed to conduct a hearing on the petition within 21 days of issuance of the remittitur unless continued for good cause as permitted by section 527.6 or unless Lopez notifies the court she no longer intends to pursue the order.”

The case is Lopez v. Chicas, A165476.

Greenberg was elected to her post in 2014. She was, at the time, a court commissioner.


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