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Filed 8/23/21 Sandra V. v. Mark W. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

SANDRA V.

, Respondent,

v.

MARK W.

, Appellant. A159934

(Humboldt County Super. Ct. No. FL2000012)

Appellant Mark W. appeals from the trial court’s denial of his request

for a continuance and subsequent grant of a request filed by his mother

- in

law , respondent Sandra V.

, for a domestic violence restraining order (DVRO)

pursuant to the Domestic Violence Prevention Act (DVPA) (Fam. Code,

§ 6200 et seq.)

. 1 Appellant contends the trial court ’s denial of his request for

a continuance to prepare for the hearing on his mother

- in

- law ’s DVRO

request was an abuse of discretion that deprived him of his right to a fair

trial. Respondent declined to file a responsive brief. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 6 , 2020, respondent, age 70

, filed a request for a DVRO

against appellant , her son

- in

- law, under the DVPA for herself and her

husband

. According to respondent’s supporting document s , appellant

1 All statutory citations herein are to the Family Code.2

harassed and emotionally abused he r at a family therapy session by, among

other things, berating, cursing a t, and accusing her of mistreating her

critically ill husband. Respondent attested

, “It is my personal belief that if

we were not in a confined area with a counselor present that he would of

harmed me physically

. ” ( Sic. )

Respondent’s request described other incidents of appellant’s alleged

harassment and abuse, including an incident around New Year’s Day 2020

when he “ barricad[ed] ” her driveway with his truck

. Appellant accused her

and her daughter ( appellant’s wife) of mistreating their you ng son
( respondent’s grandson). 2 Respondent and her daughter were so scared they

called the police, who responded and performed a child wellness check.

Respondent’s request further alleged appellant called the charter

school where her daughter worked as a special needs teacher and falsely

accused her daughter of being a sex worker

. 3 According to the request

, “[ appellant ] has further told my daughter that he is calling my work to

accuse me of child abuse. It was embarrassing but I had to put my

supervisor on alert to let her know this was his int ention.”

On January 7 , 2020, the trial court issued a temporary restraining

order against appellant and scheduled a DVPA hearing for January 27, 202 0

. At th e hearing, appellant appeared in propria persona and advised the court

he had not retained counsel and was unaware of his right to f ile a written

response to respondent’s request . The court advised him that a written

2 According to the request, appellant and respondent’s daughter have marital problems, and she often seeks refuge for herself and their son at respondent’s house. Respondent surmises that appellant is retaliating against her for these circumstances.

3 Appellant accused his wife of being a “prostitute,” a pej ora tive term
we herein avoid.3

response was preferr ed and asked appellant , “So how much time would you

need? ” Appellant replied, “ A week would be fine.” The court granted his

request and continued the hearing until February 3, 2020 , with appellant’s

response due the same day

. On January 30, 2020, appellant request ed a continuance of the

February 3, 2020 hearing, stating that he had been unable to obtain

representation due to his counsel’s illness. The next day, the court denied his

request.

On February 3 , 20 20

, appellant appeared for the hearing and provided

the court with a written response and two declarations, one from a family

therapist and the other from his wife, which he had not previously filed or

served

. Because appellant did not bring a cop y of his papers for respondent

, the court took a br ief recess to allow respondent the opportunity to review

them

. When court was back in session, respondent t estified about a recent

event in which appellant called the hospital to falsely report that she was
poisoning her husband, who was receiv ing cancer treatment . After

respondent’s testimony, the court instructed appellant to file his response

and declarations by the end of the day and asked whether he would like to

respond. Appellant made a third re quest for a continuance, explaining

,

“ There is just a lot of

— the information that she provided is a bit hysteric and

I tried the best to respond in a just facts only manner, but I really just wish I

had a little more time to retain counsel and properly, yo u know, defend

myself in this situation. ” The court replied

, “You ’ve been given enough time

and we are here. We are doing it now. So that’s denied. ”

Appellant the reafter testified, admitting that he called the hospital to

report that respondent was poisoning her husband despite having no4

evidence to support his claim

. Appellant also claimed, “[T]here are other

forms of abuse that have been taking place

, ” and, “No matter what happens

today, if [ respondent ] feels that she is in harm or I’m a threat, so be it.

Whatever she thinks. This is

— this problem will not go away. I ’ m going to

get to the bottom of it, whatever it is. It’s very serious.”

After appellant’s testi mony , respondent returned to the stand to

discuss other harassing acts by appellant , including blocking her driveway,

calling the police to her house and going through her trash. Respondent

added that, while she loved her daughter, she found herself no longer willing

or able to put up with appellant’s behavior, especially while her husband was

battling cancer. The court then allowed further testimony from appellant

,
who reiterated his claims that respondent had committed serious acts of

abuse (inclu ding sexual abuse) and that he intended to investigate and bring

criminal c harges against her.

At the conclusion of testimony, the trial court granted respondent’s

DVRO request

, finding that appellant had willfully and maliciously harassed

her : “ Anybody that would really slander another person by calling a hospital

with no evidence whatsoever about poisoning, that ’ s probably actionable on

some level. [¶]

. . . [ ¶ ] Certainly harassing. Disturbing the peace. When they

are going through a time of r eal medical possible emergency or at least

procedure for someone to call and make that kind of accusation.”

The DV R O was entered on February 3, 2020

, and included

requir ements that appellant stay at least 100 yards away from respondent

and her husband and file a receipt with the court confirming his firearms

were turned in, stored or sold.

On February 14, 2020, appellant moved for a new trial on the ground s
that irregularity in the proceeding s prevented him from having a fair5

hearing

. Appellant’s supporti ng declaration stated in relevant part: “I

diligently searched for an attorney to represent me contacting approximately

12

– 14 att orneys. Each attorney I contacted declined to represent me as they

stated there wasn’t enough time for them to prepare for trial. [¶]

. . . I filed a

DV 115, Request for Continuance, but it was denied. [¶]

. . . At the last court

hearing on January 27, 2020[ 4 ]

, I again requested more time in order to

retain an attorney to represent me. I was denied the continuance and the

matter proceeded without me being having representation or being

prepared.” ( Sic. )

On February 26 , 2020, the court denied appellant’s new trial motion,

prompting this timely appeal.

DISCUSSION

Pursuant to section 245, subdivision (b) : “Either party may request a

continuance of the hearing [under the DVPA ], which the court shall grant on

a showing of good cause. The request may be made in writin g before or at the

hearing or orally at the hearing. The court may also grant a continuance on

its own motion.”

The failure to grant a requested continuance is reviewable on appeal

from the judgment. ( Freeman v. Sullivan t (2011) 192 Cal.App.4th 523, 527 .)

“Trial courts generally have broad discretion in deciding whether to grant a

request for a continuance.” ( Ibid. )

Here, the trial court granted appellant’s initial request for a

continuance of one week but denied his second request made one business

day before the February 3, 2020 hearing and his third request made orally at

this hearing

. The court reasoned: “ Respondent [below] had approximately

4 This date appears to be a misstatement, as the hearing appellant references took place February 3, 2020.6

one month to retain counsel, file a response, and prepare for the hearing on

the Request for DVRO. In response to his initial request for a continuance,

the Court granted Respondent an additional week. Defendant [ sic ] appeared

at the hearing, filed his response and declarations, and testified on hi s own

behalf. Respondent had his day in court. ”

T he trial court did not abuse its discretion in denying appellant’s

request for a continuance for the reasons stated. (Cf. J.M. v. W.T . (2020) 46

Cal.App.5th 1136, 1140 [ abuse of discretion to deny continuance where the

moving party had a neces sary spinal surgery scheduled for the day before the

DVRO hearing].) Appellant appeared at the hearing with a written response

and multiple declarations. He was then given multiple chances to testify in

his own defense and, when testifying, admitted to several acts of harassment

alleged in respondent’s request . On appeal, appellant has not identif ied any

evidence or argument that, had he retained counsel, he would have offered in

opposition to respondent’s request

. 5 Thus, g iven the weight of respondent’s

evidence that appellant was harass ing and emotional ly abus ing her at a time

when her husband was critically ill

, the court acted reasonably in finding the

balance of the parties ’ interests weighed against further delay in

implementing a DVRO

. Th e court’s February 3, 2020 order stands.

DISPOSITION

The trial court order of February 3

, 202 0

, is affirmed.

5 Most of the information in appellant’s declaration in support of his
new trial motion , including the fact that he unsuccessfully contacted 12 to 1 4 attorneys to represent him at the hearing, was not brought to the court’s attention when he requested a continuance. As such, it is not relevant to whether the court abused its discretion in denying his request.7 _________________________ Jackson, J.

WE CONCUR:

_________________________ Fujisaki, Acting P. J.

_________________________ Chou, J. *

A159934/ Sandra V. v. Mark W.

* Judge o f the Superior Court of San Mateo County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.