Filed 2/25/19 Capra v. Garbarino CA2/3

Received for posting 2/26/19

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

ANNE MARIE CAPRA,

Plaintiff and Respondent,

v.

PHILIP ANTHONY GARBARINO,

Defendant and Appellant.

B283462

(Los Angeles County

Super. Ct. No. GQ014928)

APPEAL from an order of the Superior Court of Los Angeles County, Harvey A. Silberman, Judge. Reversed.

Philip Anthony Garbarino, in pro. per., for Defendant and Appellant.

Anne Marie Capra, in pro. per., for Plaintiff and Respondent.

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Philip Anthony Garbarino (Garbarino) challenges the issuance of a domestic violence restraining order in favor of Anne Marie Capra (Capra), asserting that the trial court lacked personal jurisdiction over him because he was not properly served. For the reasons set forth below, we reverse.

BACKGROUND

On March 27, 2017, Capra petitioned for a domestic violence restraining order against Garbarino. No notice was given to Garbarino. The trial court granted in part and denied in part Capra’s petition, issued a temporary restraining order (TRO) against Garbarino, and noticed the hearing for April 17, 2017. In addition to Capra, the TRO listed her adult daughter, Chanel Capra, as a protected person. On March 28, 2017, Chanel Capra personally served Garbarino with a copy of the TRO; notice of the April 17, 2017 hearing; and other related documents.

When Garbarino failed to appear at the April 17, 2017 hearing, the trial court nevertheless found that Garbarino had been given notice and allowed the case to proceed uncontested. After receiving testimony from Capra and her three adult children, the trial court entered the restraining order against Garbarino, which included Chanel Capra as a protected person.

DISCUSSION

Garbarino’s sole contention is that he was improperly served by Chanel Capra, a protected person under the terms of the restraining order, and thus the trial court lacked personal jurisdiction over him. Garbarino has elected to proceed solely on a clerk’s transcript. (Cal. Rules of Court, rule 8.120.) Nonetheless, given the limited issue on appeal, the record is sufficient for appellate review. (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521–522; Cal. Rules of Court, rule 8.163.)

Proper service is a mandatory requirement for a court’s exercise of personal jurisdiction and an order entered without personal jurisdiction over the defendant is void. (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1330–1331.) “[A] named person protected under a domestic violence injunctive order cannot validly personally serve such orders and related legal process on a defendant.” (Caldwell v. Coppola (1990) 219 Cal.App.3d 859, 865.)

Here, the proof of service indicates that Chanel Capra personally served Garbarino with the TRO and the notice of the April 17, 2017 hearing. As a protected party under the restraining order, Chanel Capra could not effect service on Garbarino. Thus, the trial court lacked personal jurisdiction over Garbarino and could not enter an order against him.

DISPOSITION

The order is reversed. The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED.

DHANIDINA, J.

We concur:

EDMON, P. J. LAVIN, J.