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Court of Appeal:
Restraining Order Affirmed Although Not Sought by Petition
Judge, in Granting Relief to Party Seeking Protection, Also Commanded That Respondent Not Be Harassed; Opinion Affirms Action Based on Allegations Contained in Responsive Pleading
By a MetNews Staff Writer
The Court of Appeal for this district yesterday rejected an appellant’s contention that her right to due process was abridged when a judge, hearing her motion for a civil harassment restraining order, in addition to granting the relief she sought imposed a like stay-away requirement on her although the defendant had not petitioned for such an action.
Justice Tari L. Cody of Div. Six authored the unpublished opinion affirming the order that San Luis Obispo Superior Court Judge Tana L. Coates imposed on plaintiff Cherine Cielo.
Cielo brought suit against Sherry Vincent Payne who blamed the plaintiff for the break-up of her marriage, engaging in various forms of harassment. At the hearing on Cielo’s petition, Coates, noting allegations by Payne against Cielo in her responsive pleading, commented that “the evidence for both sides evidenced a mutual pattern of ongoing harassment” and imposed mutual restraining orders, to which Cielo did not protest.
Payne subsequently filed a petition for a restraining order which Coates found unnecessary because one was already in place. Cielo moved that the order against her be vacated on the ground that Coates lacked authority to impose it because Payne had not petitioned for it under Code of Civil Procedure §527.6.
Coates denied that motion, explaining:
“While not a cross-petition, Respondent’s contentions that served as the basis for the order were set forth in her response to the petition. The parties had a full trial on their issues.”
Two Cases Noted
Cody said in yesterday’s opinion that “[t]wo cases anchor appellant’s arguments,” pointing to the 1991 opinion from Div. One of the Fourth District Court of Appeal in Kobey v. Morton and the 2004 decision by Div. Seven of this district’s Court of Appeal in Nora v. Kaddo.
In Kobey, the court held:
“The court’s inherent power does not extend so far as to encompass an order without a petition to serve as a vehicle for that order….While we applaud the trial court’s efforts to keep the peace in the highly emotional situation here, we cannot elevate this goal over the basic requirement of due process.”
That decision was followed in Nora which reversed a restraining order in favor of then-Los Angeles Superior Court Judge James Kaddo (now retired) against the petitioner, Fadi Nora. The Court of Appeal said:
“Although Kaddo failed to file a cross-complaint seeking injunctive relief against Nora, and presented no evidence of harassment, the court granted his oral request at the close of the hearing to make the injunctive relief mutual. That order was an abuse of discretion.”
Cases Differentiated
Cody expressed general agreement with the proposition that relief not sought by a petition may not be granted, but said the rule won’t be applied in the present case because the fact situations in Kobey and Nora were different. The petitioners in both cases objected, on the spot, to restraining orders being imposed on them while Cielo did not, the jurist noted, and neither Kobey nor Nora filed “a prophylactic section 527.6 petition” as Payne belatedly did.
She quoted Coates’s explanation in denying the motion to vacate that Cielo was “aware of the content and allegations of Respondent’s petition” and that “a further evidentiary hearing would generate the same evidence and allegations the Court has previously considered.”
Although “the parties’ testimony at [the] hearing is not contained in the record,” Cody said, “their declarations and exhibits are sufficient to support a finding that each party engaged in” conduct meeting one of the definitions of harassment in Code of Civil Procedure §527.6(b)(3): “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.”
The case is Cielo v. Payne, B340404.
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