Wednesday, June 17, 2026
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Restraining Order Improperly Granted Where Service Did Not Include Copy of Request
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal has reversed a stay-away order, declaring that even if the trial judge did not err in permitting service by mail, there was a fatal defect in that the request for relief was not included in what was sent.
The unpublished opinion, filed Monday, reverses a civil harassment restraining order (“CHRO”) imposed on Roberta L. Gandy in an action brought by Beth Jacobson. San Diego Superior Court Judge Tim Nader, persuaded by Jacobson that personal service, called for by Code of Civil Procedure §527.6, could not be effected, authorized the mailing.
He granted a temporary restraining order and later granted the CHRO at a hearing not attended by Gandy. She later appeared through counsel and Nader denied relief.
Defective Service
“We need not decide whether the trial court erred by authorizing substitute service because the record demonstrates that Jacobson’s service by mail was itself deficient,” Justice Martin Buchanan wrote. “According to the proof of service, Jacobson only mailed the ‘Order on Request to Continue Hearing’ to Gandy.”
He said that “[t]he record contains no proof of service of the CHRO request or the TRO, as required by section 527.6, subdivision (m)(l).”
The justice declared:
“[T]he trial court lacked personal jurisdiction over Gandy when it conducted the CHRO hearing and issued the CHRO in her absence.”
‘Substantial Compliance’
He went on to say:
“Some courts have suggested that ‘substantial compliance’ with statutory service requirements may be sufficient if the defendant has actual notice of the litigation….Even assuming substantial compliance suffices, however, such a finding would require three conditions: (1) there was some degree of compliance with the offended statutory requirements; (2) the objective nature and circumstances of the attempted service made it highly probable it ‘would impart the same notice as full compliance’; and (3) it did in fact impart such notice, or at least sufficient notice to put the defendant on her defense.”
Buchanan declared:
“Jacobson’s service of the Order on Request to Continue Hearing did not satisfy each of these requirements. Although it may constitute some degree of compliance with the statute, it did not ‘impart the same notice as full compliance.’…Specifically, the order did not give Gandy notice of the allegations Jacobson was making against her in the CHRO request, the nature of the requested relief, or the terms of the TRO issued by the court. Full compliance with the statute would have put Gandy on notice of all these things.”
The case is Jacobson v. Gandy, D086005.
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