Friday, November 21, 2025
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No Relief for Woman Who Came to Court, but Wrong Courtroom, Wrong Time—C.A.
By a MetNews Staff Writer
A woman who showed up at the courthouse to contest a petition for a restraining order against her based on elder abuse—but went, with three witnesses, in the afternoon to the deparment where previous proceedings had taken place rather than to the department where the matter was set for hearing that morning—was properly denied relief from default, the Sixth District Court of Appeal has held.
On the morning of June 25, 2024, plaintiff Marilyn Creasy was granted a five year restraining order against the absent Viveca King. King sought relief under Code of Civil Procedure §473(b) which provides:
“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”
Santa Clara Superior Court Commissioner Johanna Thai Van Dat de denied the motion, finding “no good cause.” Sunil R. Kulkarni, a Santa Clara Superior Court judge sitting on assignment to the appeals court, authored the unpublished opinion, filed Wedsnesday, affirming Thai Van Dat’s order.
King’s Contention
In her brief on appeal King recited:
“Ms. King declared under penalty of perjury, along with her supporting witnesses, that she would have been at the June 25, 2024, hearing to contest the allegations brought against her but for her mistake in believing that the time of hearing was at 1:30 p.m. in the department she had previously appeared in front of before. Ms. King appeared with those witnesses at the courthouse on the correct date and went from department to department in an attempt to determine where her hearing was after Department 4’s doors were locked. While at the courthouse, she was simultaneously served the restraining order that had been issued against her that morning without her presence.”
She argued:
“The trial court’s erroneous finding of ‘no good cause’ effectively denied Ms. King the opportunity to defender herself at an elder abuse hearing despite showing more than ‘slight evidence’ required based on no supporting case law. Elder abuse cases involve significant public policy concerns that warrant careful judicial consideration. By denying the motion to set aside without adequate consideration of the potential grounds for relief, the trial court prevented a full examination of the elder abuse allegations and issued a the maximum time allowed for a restraining order based on the testimony of only one individual.”
Pro Tem’s Opinion
Rejecting the contentions, Kulkarni wrote:
“We acknowledge that only slight evidence is needed to prevail on a section 473(b) motion….The only evidence presented by Ms. King, however, relates to her assertion that she assumed the time and department for the June hearing was the same as for previous hearings. She does not state that she was not told the correct time at the previous hearing, or that she was not told she would receive notice in the mail. She does not assert that she did not receive written notice of the time and location of the hearing or see the notice, or explain why she did not read any such notice.”
She added:
“Ms. King does not explain how her assumption about the time and location of the restraining order hearing is conduct mirroring that of a reasonably prudent person. She also gives no reason she could not have verified the actual he arina time and location. Further, she provides no argument or evidence supporting a conclusion that her appearance and presentation of witnesses at the hearing would have altered the outcome.”
The case is M.C. v. King, H053074.
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